Business Clinic: Raising concerns over neighbour’s septic tank

Whether it’s a legal, tax, insurance, management or land issue, Farmers Weekly’s Business Clinic experts can help.

Russell Reeves, partner, Thrings, advises on how to go about a potentially tricky problem with a neighbour’s property.

See also: Business Clinic – getting authorities to sort out roadside ragwort

Q: I own one half of a pair of semi-detached farm cottages, with no mains sewerage. The owner of the other half has recently extended their house and paved over the garden.

Last winter, the neighbour’s septic tank was overwhelmed and there was a smell of sewage in their house when it rained.

The cottages are built with a cavity under the floor, with air bricks in the wall. Recently damp has appeared on the dividing wall on my side. The property is now up for sale. As the issue is unresolved, what is the best way to register my concerns and protect my interests?

A: It sounds as if you have a potential claim in nuisance and/or negligence against your neighbour.

Nuisance occurs when an activity happens on one person’s land which unduly interferes with the use or enjoyment of another person’s land.

Here, you allege that one of the extensions, garden paving, septic tank or – I speculate – perhaps the failure to empty the septic tank regularly (or a combination), are causing damp and bad smells.

These would understandably interfere with the use and enjoyment of your property and cause you disturbance and annoyance. 

The nub of the matter is finding out what has caused the problems. You don’t say whether the problems happened prior to the development of your neighbour’s house or how long each of you has lived there.

To succeed with any claim, because it is you who carries the burden of proof, you would need to obtain an expert opinion. That is because, if the case ever reached court, a judge would expect to hear evidence from an expert suitably qualified to identify the cause of the problems.

If and once you have obtained an expert opinion, then the “rules of court” provide that you should write to your neighbour setting out the basis of your claim and what you are claiming.

So, you might, for example, require your neighbour to fix the cause of the problems by emptying the septic tank more regularly, making it bigger or remedying the paving or extension.

Your claimed damages would need carefully calculating, probably by an expert, but might include a sum of money to represent the devaluation of your property, the cost of damp-treatment work and/or a sum of money to, in effect, compensate you for the bad smell until remedied.  

Access to property

Whether the expert needs to inspect your neighbour’s property will be down to the expert’s opinion – it may be that they can see everything they need to see from your property.

If the expert needs to access the neighbouring property, then the neighbour’s permission is required and should be sought. If that is refused, you would have to make an application to the court for an order providing access.

It is extremely likely that a court would make that order and probably punish the neighbour for being unreasonable in refusing permission, by ordering them to pay your legal costs of the application.

I don’t know how well you get on with your neighbour but if you feel inclined, you could approach the issue together and agree to instruct an expert together to advise you both. The advantage of a joint instruction is in costs saving, usually paying 50% each.

One disadvantage is that you might not agree with the report, but your neighbour will see it. It may then be harder to obtain your own report which sides with you. That is usually why obtaining your own expert report is preferable.  

Assuming you have raised the issue with your neighbour, he will be duty bound to disclose it to the purchasers of his property. If he fails to do so, he may face a claim for misrepresentation.

Once your expert has confirmed that your neighbour has caused the problem, it would be sensible to tell your neighbour’s estate agent about your claim and copy any correspondence over to them so that they may alert potential buyers.

While this claim exists unresolved, your neighbour may have difficulty selling his property. Therefore, now is a good time to be making your claim.

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