Who's responsible for below ground drainage?

“Out of Sight and Out of Mind”

As at the 1st October 2011 new legislation came into force within England and Wales seeking to deal with the uncertainty and confusion previously arising as to the responsibility for repairing private sewers and lateral drains. The definition of a lateral drain is a drain located outside of your property boundary. The definition of a private sewer is a sewer on private land but serves more than one property. Whilst for many, such consideration may not be a frequent occurrence there is a long history of dispute and recrimination arising from this matter.

Many properties discharge waste water into private sewers via lateral drains that ultimately discharge into the “public” drainage system. Often the responsibility for repair and unblocking of such private sewers and lateral drains is not identified in the title deeds! In an effort to deal with this matter the 1936 Public Health Act, which came into force during October 1937 identified the party/parties responsible for the repair of private sewers. In essence, it being the responsibility for the owner/occupier of the property to undertake any necessary repairs and then seek to recover a proportion of the cost from those parties “upstream” who also have benefit of the private sewer. This situation often proved to be a “nightmare” with the party undertaking and meeting the cost of repair unable to recover monies from other owners/occupiers.

During 2001 there was a government review of the situation concerning the ownership and maintenance of such drainage; it having been identified that within England and Wales there is circa 200,000 kilometres of such private sewers and lateral drains! Hence consideration commenced as to whether or not there should be a transfer of ownership to water and sewerage companies. The protocol came into force on the 1st October 2011 with the ownership of private sewers and lateral drains being transferred to the 10 water and sewerage companies. These companies now have the responsibility to repair and unblock, and the cost of such work being included collectively in the annual water and sewerage charges.

The water and sewerage companies have no responsibility to maintain, repair or un-block any drains which serve a single property that lie within the boundary and therefore it is the condition of these drains which is of great importance, particularly if these drains lie beneath private highways or exit the building via a basement and are therefore at considerable depth.

In relation to premises that are leased on “full repairing” terms, the extent of the demise is normally defined by a plan that indicates the boundary of the premises with a red line within; which the tenant’s repairing covenant applies. If the repair/blockage is outside the tenant’s demise, but remains within the landlord’s property then it is likely the landlord will remain liable for the repair subject to a 'service charge' provision in the lease.

Despite some clarity now being provided we strongly recommend that at acquisition of freehold or leasehold property interests the drainage system in-situ is identified and surveyed.

This issue can still be a legal and practical minefield and we recommend professional advice is sought by landlords and tenants either when taking an interest in a property or when an issue arises.

“Out of Sight and out of Mind” – perhaps not?