‘Will I regret not insisting my neighbour removes downpipe before I buy home?’

I am sale agreed on an end-terrace house with a side passage that leads to the back garden. While visiting the house, I was approached by a next-door neighbour, whose external wall adjoins the side passage. She has no access to the side passage but there is a downpipe attached to her external wall that collects rainwater from the valley in between her double gable roof. This pipe runs off on to the driveway of the house I am purchasing.

The neighbour claims she has easement rights for the maintenance and repair of this pipe and her roof. Both my solicitor and the seller’s solicitor confirmed there is nothing in the wording of the title deeds to confirm this, and the boundary maps also show the side passage is clearly not her property.

However, my solicitor says the downpipe emptying on to the driveway is an act of trespassing and needs to be resolved before I sign any contracts. She strongly advises insisting the woman redirect the pipe.

I can’t help feeling this is an overreaction, but am I missing something? What are the possible ramifications both legally and structurally of leaving this drainpipe in place? I’m satisfied the neighbour has no right of access and don’t wish to antagonise her by insisting she reroute a drainpipe that isn’t bothering me.

Should I be more concerned? What possible future pitfalls am I facing by buying the house and tacitly accepting her trespass?

A solicitor’s perspective

While your potential neighbour may not have documentary evidence of the existence of an easement, this does not mean one does not exist, or that one could not be acquired should you fail to take action.

You should seek further clarification of how long this drainpipe has existed and been in use. In housing estates, it is not uncommon for implied easements to arise in favour of each house upon sale from the developer to the individual homeowners, unless there is something in the deed of sale that is inconsistent with such easements being implied.

Nevertheless, if it can be shown that no easements were capable of being implied, your neighbour may be able to prove she has acquired an easement over your property under the doctrine of lost modern grant. To be successful, she will have to prove there is a dominant and servient tenement: the easement accommodates the dominant tenement, the dominant and servient owners are different persons and the right claimed must be capable of forming the subject matter of a grant. In this case, your neighbour could successfully prove all four requirements as her property is exercising drainage over your property providing a function to her property and is something that could be granted as an easement.

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She must also prove she has enjoyed the continuous use of this for a period of 20 years without force, secrecy or consent. As you have not disclosed the period of use, I cannot comment on whether this element has been satisfied. Regardless, this is something your neighbour can acquire if she continues to exercise use over your property.

It should be noted that a potential easement over the property does not prevent you from purchasing should you so wish. It would be wise to insist the vendor provides an explanation for the circumstances that would justify the implication that an easement was intended, and for this to be backed up with a statutory declaration. If the easement cannot be implied, you could seek a grant of easement between the vendor and your neighbour to be registered by you with the land registry as part of your application to register the property in your name post-purchase. I would also insist upon an undertaking being provided by the vendor to assist with Land Registry queries. If you are purchasing with a mortgage, you must qualify title to your lender before you can proceed to purchase the property.

Provided there is no implied easement, this interference with the property could be an act of trespass as the drainpipe has been caused to directly enter into your property without consent or adequate justification.

That being said, as you have not confirmed how long the drainpipe has been in place over your property, I cannot confirm whether the six-year limitation period has expired. If the drainpipe has been in place for more than six years, the matter is statute barred and you cannot bring an action for trespass.

Amy Collins is a solicitor at P O’Connor & Son

A building surveyor’s perspective

I would approach this pragmatically and with an emphasis on maintaining good neighbourly relations. The presence of the downpipe would not, in itself, cause me undue concern. The more relevant consideration is how the arrangement functions and how it will be managed when either owner needs to undertake maintenance or alterations.

The photograph you supplied us shows an older, period-style property with two pitched roof sections and a central valley collecting rainwater into a hopper and downpipe.

Although the present UPVC pipe appears to be a replacement, its position and function reflect what was likely to have been the original construction detail. The rainwater now appears to be directed away from the buildings, towards the front of the property, which is a positive feature.

Your building surveyor should review the drainage as part of the purchase survey and check for evidence of damage associated with any previous discharge arrangement.

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In my view, the most practical way forward would be for the vendor to seek a written agreement with the neighbour covering maintenance, access and future alterations to the drainage. The aim should be to preserve effective drainage while avoiding unnecessary restrictions on either owner’s use of their property.

For example, should you wish to extend into the passage, the agreement should establish that the pipe could be relocated or rerouted to a suitable standard, without causing water ingress or other adverse effects to the neighbouring property and agreed with the neighbour in advance of any works. It should also address how the associated costs would be allocated.

The apparent age and configuration suggest a long-standing arrangement of a type I have encountered many times in practice. Older title documents do not always fully describe rights or easements relating to drainage provisions. Those matters should be clarified by the solicitors and, as suggested above, practical arrangements agreed where uncertainty in the title documents becomes apparent.

In that context, part 8, chapter 3 of the Land and Conveyancing Law Reform Act 2009 addresses works to qualifying party structures. Section 43 defines the structures and works covered, section 44 sets out the building owner’s rights and obligations, and sections 45–46 provide for District Court works orders, including authorised access to adjoining property.

The solicitor can advise on their application here. However, agreeing maintenance arrangements before a dispute arises would be preferable to having to rely on that procedure in my view.

It is worth remembering that this is a shared issue. Although it has arisen during your purchase, uncertainty about drainage and maintenance access could equally become a concern if the neighbour decides to sell in the future.

A clear agreement would, therefore, benefit both properties and any future owners. Putting such an agreement in place may take additional time in your purchase of the property, but a neighbourly, practical solution supported by an appropriate legal agreement is worthwhile.

Aidan McDonald is a chartered building surveyor and a member of the Society of Chartered Surveyors Ireland

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