Any property lawyers?

[bells2]

OK this is a long shot but before we shell out on an expensive lawyer, thought it was worth a try. Our house was built in 1710 and we bought it in 1998 from the NHS who had owned it and run it as a clinic for over a century. It has recently transpired that the drainage from our kitchen flows directly into the rainwater gully outside our house. This obviously is not the way drainage is supposed to work as it should be connected to the sewerage. The drainage system is well over a hundred years old and our builders didn't alter it but just connected up the sinks etc to the existing network, asssuming that as it had been in place for more than a hundred years, the sewerage system was as it should be. There was previously a sink where our kitchen sink now is.

The problem is that the drains frequently get backed up and start to smell and we are virtually certain that to have kitchen drainage going straight into a rainwater gully is illegal. The problem is that to fixing the situation would involve digging up our entire kitchen floor (limestone and the concrete underneath) and effectively destroying the kitchen. It would obviously be horrendously expensive.

So my question is who is legally responsible for the problem? Is it us as current owners of the house or is it the NHS who owned the house previously and who were responsible for setting up the drainage?

Any thoughts/pointers appreciated.

I'm any sort of lawyer but did you have a survey and if so, what did it say about the drainage? Also, could the drains be diverted outside of your house (eg under the driveway/ garden) from the rainwater gulley to the seweage system rather than tackling the problem under the kitchen? I'm just thinking round the problem here, again I'm not an expert.

Hopefully someone else can answer you properly...

I am a commercial property lawyer.

When you purchase a house your seller will answer questions, basically anything that you ask. If they give misleading or incorrect information then if you in future suffer loss then you could have a claim against them. It is very likely that they answered a question relating to anything else that might affect your purchase of the property. So if they knew that there was a problem with the drainage they probably should have disclosed it.
There has been a very recent case where a couple sucessfully sued a seller who withheld information that directly impacted on the value of the property.

The first place to start is to look at the documents that your solicitor produced on the purchase. They may have sent you a report on title which might include copies of enquiries and responses. If not contact your solicitor and get them to send you all the relevant info.

The other question is could your solicitor be liable ? I must admit that I don't know the answer to that, but solicitors when they act on a purchase normally act for your mortgagor as well. Mortgage companies publish a standard set of queries/issues that they expect solicitors to certify ie: that the seller has good title to the property. I'm sure that drainage would be one of the areas the solicitor is required to look at. However, I suspect that you do not have any direct rights against the solicitor this way. Any residential property lawyers out there ?

Your solicitor could still be liable - if they made no enquiries as to drainage or it was obvious from looking at the info that there was a problem and they did not follow up with further queries or inform you.

Also could the surveyor be liable for not picking up on this issue? Again it would depend on what sort of survey you had. A standard mortgage survey would probably have some sweeping disclaimers. You would have to check the survery report and check the small print. Again, another issue is probably who employed the surveyor.

If in doubt sue the professional !!! Though strangely enough it is normally easier for your mortgage company to sue than you, but thats another story.

In conclusion:

1. Check your retainer letter that your solicitor sent when he accepted your instructions. What does it say that they will do ? Did they do it?
2. Check your documentation that your solicitor sent you.
3. If its missing enquiries / replies then ask your solicitor for that info. You can also, I am sure assuming you have paid their bill (!!), ask your solicitor to send you your purchase file. Often matters are dealt with in correspondence as well. They will have it in store.
4. Check your survey report and the small print.
5. Speak to the Law Society. Do a search for the law society on the web, their website will give you contact details. They are the regulation body for solicitors and might have some guidance notes on residential conveyancing and what is part of a solicitors retainer. They also will have info on how to make a complaint, if required.

Get as much info as possible and then let us know if you have found out anything.

Hi Soupdragon. We had a full structural survey done which made no reference at all to drainage but then I don't know whether this is something that should have been covered. As the rest of the place was literally falling down, it was a very lengthy document!. We have had builders look at the situation and they say that the entire kitchen floor and the front garden would have to come up as it would basically necessitate a new drainage system.

Some more thoughts.

Your local search will have some questions regarding drainage, check what they say. Was it obvious from the reply that further enquiries needed to be made. Again your local search might be in the report of title, if not ask your solicitor.

You can also do a search directly with the relevant water authority which will tell you the position regarding drainage and the route of any known drains etc.. Normally under £100.

However, often these searches are inconclusive. Certainly when we purchase commercial properties we do them as a matter of course, but I suspect they are not normally done on residential purchases.

The searches carried out by your solicitor at the time you bought the house should have revealed whether the property was connected to mains foul drainage.

Drainage used to be covered by the local authority search, which all solicitors carry out - but now the local search usally says "talk to the water company". Not all solicitors bother to talk to the water company, though they should.

Have a look at the reports given to you by your solicitor before exchange - if they don't make clear that this is a search they haven't done, you may have a claim against them in negligence for not discovering the problem.

Thanks a lot phb and Kaz33. Will try and dig up all the paperwork and take a look.

Drainage I would imagine should have been dealt with in the structural survey. Remember even if something is excluded in the small print of the survey that is not conclusive. Just because a solicitor or surveyor excludes liability, it does not mean that they can do so. Hope that makes sense.

Drainage I would imagine should have been dealt with in the structural survey. Remember even if something is excluded in the small print of the survey that is not conclusive. Just because a solicitor or surveyor excludes liability, it does not mean that they can do so. Hope that makes sense.

ok, ladies, hate to be the bearer of bad news, but bells2 , it is not either wrong or unusual for a house as old as yours to have the kitchen sink draining directly into the rainwater gully. It wouldn't be allowed nowadays in new build, but my understanding is that often if it's that way already, building control will allow it to remain even if the kitchen is renovated. I have just gone through something similar in our house. The previous kitchen drain (done in the 60's) went into the rainwater gulley. However, in our case although we were keeping the sink in the same place, we had to completely redo our drainage. The plumber warned us that it would be completely dependent on the whim of the building control inspector. He also seemed to feel that it wouldn't cause us problems if building control didn't mind.
I would suggest that instead of trying to figure out who is legally responsible, as it will probably end up being you, you might just want to spend a little money fixing the drain problem instead of on lawyers. You should be able to get rid of the smells relatively easily and cheaply (without ripping up your kitchen). There are a variety of fancy traps nowadays that deal with most problems. Is it just the kitchen drain that is smelly, or are you having problems elsewhere in the house? Where is the backing up occurring? Indoors or out? Are you in London? If so I could recommend a good trustworthy plumber.

Hi SofiaAmes, we have had two plumbers, a drain specialist and Dyno Rod all come and look at the situation (sending the cameras down etc) and all say the situation can't be resolved without ripping up the kitchen. The dishwasher as well as the sink goes into the rainwater gully. The backing up and smells occur immediately outside our kitchen window which is pretty awful for us and our neighbours (who complain vociferously). We are in London (E1). The other houses in our terrace were built around 40 years later than ours and I know they have had drainage prolems in the past but not as severe as ours.

We had to gut the house and the Building Inspector was happy with everything,

Now that is a good idea Batters, thankyou.

oh bells, how awful! that is my nightmare scenario... fingers crossed you manage to find a "low impact" solution. best wishes.

bells2, is the smell coming from an open drain that apart from rainwater, only the kitchen sink and dishwasher empty into? Are they on the same wall as this drain or at the opposite side of the kitchen?

The smell you are describing sounds like there is toilet sewage involved. Has anyone suggested that the rainwater and all the sewage may actually join together underground in one pipe on your property? I seem to remember my plumber telling me that that did happen on older properties?

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The smell comes from the drain outside, at the front of the kitchen (opposite wall to the sink) which overflows because the rainwater gully located in the public lane at the front of the house gets blocked. There's been no suggestion that it's sewearge just that it smells becaus it involves food scraps etc that have been hanging around for a long time. But I guess SOfia that if you are saying that the current situation is not necessarily illegal, then we can carry on as we are by regularly clearing the drain ourselves?

bells2, it just doesn't fit together to me. The waste going down a sink drain shouldn't really be any smellier than the accumulation of leaves and bird poo that goes into a rainwater gully. Also if the rainwater gully that is getting blocked is in a public lane it is either the council or the water authority's responsibility to unblock it or to make it bigger/deeper if it keeps getting blocked. And I don't really understand why your kitchen would need to be torn up to switch the sink drain from the rainwater gully to a sewage drain, unless the sewage drain is on the other side of the kitchen. And even then, there might be other possibilities. And in answer to your question, if the work was officially approved by building control, then you haven't done anything wrong or illegal, so if it isn't too much trouble, you could just carry on clearing the drain.

Thanks for you help SA!. The sewage is on the opposite wall. The council have been clearing out the drain in the laneway when it gets blocked but we have been worried that if our layout is illegal (which is what is causing the blockage) they may force us to change it. Anyway, you have given me a lot of food for thought and a few possible leads.

Can you put some sort of filter over your plug hole to minimise the foodscraps which go into the drain? This might help with the blockages & smells. If it's just water going through, it shouldn't cause blockages should it??

Yes we've done that, I think it's the dishwasher which is the main culprit. But you are right, it is odd that it gets so blocked and smells so much if it is just the dishwasher and the sink so I do think we need to investigate further.

I guess, being an old pipe, it may simply be too narrow for the volume of water? If Dynorod etc have had their cameras down there, though, I would have thought they'd have said this.

I hope you get it all sorted without having to rip out your kitchen! We need our main drain pipe relined because of tree roots but they say it can be done without digging up the drive way (which is actually a shame, because it's horrid crazy paving )

Good luck

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