Q&As

A septic tank serves property X. The neighbouring property Y also drains into the septic tank and has done for years, although there is no written agreement governing this. The owner of property X accepts that property Y has a prescriptive right to use the septic tank. The owner of Y has never paid any maintenance costs. X plans to replace the tank with a treatment plant. Can X do this and, if so, will Y have similar rights to use the treatment plant? Can X claim a contributions from Y in respect of installation and maintenance costs?

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Produced in partnership with Catherine Budd of Landmark Chambers
Published on LexisPSL on 20/10/2017

The following Property Q&A produced in partnership with Catherine Budd of Landmark Chambers provides comprehensive and up to date legal information covering:

  • A septic tank serves property X. The neighbouring property Y also drains into the septic tank and has done for years, although there is no written agreement governing this. The owner of property X accepts that property Y has a prescriptive right to use the septic tank. The owner of Y has never paid any maintenance costs. X plans to replace the tank with a treatment plant. Can X do this and, if so, will Y have similar rights to use the treatment plant? Can X claim a contributions from Y in respect of installation and maintenance costs?
  • Can the servient owner replace the tank?
  • Can a contribution be sought from the dominant owner?
  • Regularising the position going forward

This query concerns whether the owner of land (the servient owner) on which an existing septic tank is situated and over which a neighbour enjoys rights of drainage acquired by prescription is entitled to replace the existing tank with a modern treatment tank and whether the neighbour benefiting from that right of drainage (the dominant owner) can be required to contribute towards the costs of installing and maintaining such new apparatus.

Can the servient owner replace the tank?

Assuming that the dominant owner has a prescriptive right of drainage into the septic tank (as stated), the first question to consider is the entitlement of the servient owner to replace the existing septic tank with a modern equivalent. So long as the process were managed so that the neighbour’s drainage rights were not interfered with to an actionable extent, there would in principle be no objection to the servient owner upgrading their own apparatus in this way. Therefore the septic tank could be replaced by new apparatus, provided that the drainage into that new apparatus continued to be substantially and practically exercised as conveniently as before: see B&Q Plc v Liverpool & Lancashire Properties Ltd. Generally as to what amount to actionable interference with an easement, see Practice Note: Easements—actionable interf

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