How would it be possible to set up a legally binding contract with Scottish Water without this being burden on our title? They want us to sign a build over agreement (section 21) as a condition of title which in itself means the title would no longer be clean but aside to this, the agreement includes an onerous set of conditions, one of which is a standard security so that they have to give agreement prior to a mortgage lender being able to register first charge in the event of the land changing hands.In the current mortgage market we are advised that this is likely to render our property non mortgageable.Scottish Water want:Control/knowledge each time the land changes ownership to ensure the agreement is continued and indemnity insurance continued by the new owner.Indemnity insurance of £50-70,000 in case the sewer has to be re-routed.No liability for any damage caused by our structure being inside 5 metres from the line of the sewerNo liability for the structure should they have to dig down 10 metres to the sewer very close to the property ( the property would have to be propped up)so any owner would also need indemnity insurance in the event of this happening.We expect an imminent geotechnical engineers report to state that our structure poses no threat due to the depth of the sewer and should the sewer fail,bwhich would be a localised failure, this would not disturb the foundations of our structure.There is access to the sewer within 20 metres of the property via manholes so the first action for repair would be to line the pipe via this access but we of course have to insure just in case.We admit we built the structure with no knowledge that the sewer was there which SW accept which is why they have granted retrospective agreement but subject to us signing the sec 21 which they insist should be registered as above.Scottish Water have statutory powers of access but their acting solicitor is currently insisting on the sec 21 being in his proposed format and being registered with the title.Our final step will be to approach the CEO of SW but in order to seek a common sense approach we need a viable alternative to their proposals which will tick all of their boxes but leave our title clean.Can you help?Carol
Province/Country relating to question : Scotland
Engineer written to SW solicitor explaining minimal risks without success. The current sec 21 conditions have been changed from the draft received in 2011, the standard security condition has been added, so we propose to object to this if there is no other route but to have an agreement assigned. Our solicitor has written to SW to point out that a nearby housing estate has the same size sewer running below houses. No standard security in their titlle records - SW just say we were wrong to bui
Thank you for your question.The Scottish Water solicitor is following a rule book which has been put together without having regard to the fact that each case has to be considered on its merits. I have seen the publication referred to and exactly what you complain of is the stated policy of Scottish Water.And I very much doubt that you will be able to negotiate what you seek because Scottish Water will consider that they have the upper hand because you built without their permission.However, in my opinion you will not be able to negotiate away from a burden placed on your title. A personal contract is of no use in these circumstances as it is not binding on subsequent owners. A standard security should be resisted completely. Your argument should be made under section 21(2). Her are sections 21(1) and 21(2):(1) Unless with the consent of [ Scottish Water ] , which shall not be unreasonably withheld, nobuilding shall be erected [ or embankment constructed ] over, or in such a way as to interferewith or to obstruct access to, any sewer [ or SUD system ] vested in [ Scottish Water ] [ or inrespect of which [ it has ] made a determination under section 3A(2) of this Act ].(2) If any question arises as to whether consent under the foregoing subsection has been unreasonablywithheld or as to what conditions should be attached to the consent, a person aggrieved may referthe question by summary application to the sheriff, whose decision in the matter shall be final.You are looking for retrospective consent. Given the engineers report you refer to above you can argue that the conditions that Scottish Water seek to impose in return for granting the consent are unreasonable and unnecessary. If agreement can't be reached your remedy is to take the matter to the sheriff court. From what you say you certainly have a case to state.I hope this helps. If you want to clarify any matter please reply to me. Please also leave a positive response so that I am credited for my time.
Thank you for your reply.I think you are saying we will have no choice but to accept that a section agreement will have to signed to gain retrospective agreement which in itself will create a burden on the title - is this correct.If yes, I think you are saying that the appeal to the sheriff's court would be to argue that some of the conditions are unnecessary?You say standard security should be avoided - could you tell me why exactly in legal terms and if possible, suggest an alternative condition that may satisfy SW in terms of control?How much emphasis could be placed on SW's statutory rights to access the sewer pipe - I accept that they would not be responsible for the cost of any damage to the property should this be necessary due to the structure being built above, but if we insure accordingly and they can dig without the land/house owners permission,bsurely it is the matter of them ensuring indemnity is in place that is key here? Is there definitely no other way we could ensure that continuing indemnity insurance could be a condition of purchase without the condition being attached to the title?Or putting this another way if that were not feasible, do SW need a sec 21 signed when they already have powers of entry - could the indemnity clause stand alone somehow?Do you believe the fact that we were led to believe the sec 21 agreement we would have to sign when this was sent to us with an email saying SW agreed we built in good faith, with the wording not including standard security should be honoured? At this time which was around May 2011, the infrastructure plan they issued was inaccurate, the dimensions indicated the sewer lay above ground. Over time we eventually got SW to carry out a CCTV survey which proved the sewer did exist, where it was and how deep.bthisvwasn't until dec 2011. It was then that they referred the matter to their legal dept and the SW condition was added. Would thisvargumentbhelp to squash the standard security?We relied on professionals who let us down, so yes we are liable but we don't what boundaries can be stretched so that common sense prevails but SW are adequately protected.
Yes, you won't be able to avoid a burden being placed on the title. Your summary application to the sheriff should be concerned with avoiding the need to have a security taken over the house. No alternative is required as far as I can see as no good reason has been advanced for having a security over the title.Possibly a title condition could be considered whereby Scottish Water are informed if a sale is to take place but the purpose of the security is not clear to me in the circumstances you describe.A security is normally for a loan over the property, not for enforcement of conditions.There is no way to create a permanent and binding liability on successive proprietors without a title condition. They are entitled to insist on the section 21 agreement. Have you investigated indemnity insurance? In a recent case I had, no indemnity insurance could be found on the commercial market. The argument you outline relating to earlier communications will not succeed as none of these became binding contractual obligations.The only way to resolve this is to offer the section 21 agreement, and a title condition and indemnity policy if available.These will not affect the value of your house.Any other conditions I would take to the sheriff as being onerous and unnecessary.
Thanks again.If we are unable to secure indemnity the value of the house or resale would surely be affected as we as the owners and any future owners would have to find the cost of rerouting the sewer or propping up the structure should SW need to dig etc?What would be the implications of us refusing to sign an agreement?Are there lawyers in Scotland that specialise in this type of thing as ours clearly does not have the knowledge currently. Can you either tell me under what category I could search to find someone suitable or recommend a contact? I did find one but they had SW as a client so could not take our case.
As regards XXXXX XXXXX of the house in the absence of an indemnity that is a question that you would have to direct to a surveyor.If you refused to sign the agreement then Scottish Water could apply to the court to have the extension taken down.As far as a specialist solicitor is concerned this is an extremely specialised area and I don't think that a solicitor could make a living out of such a small area of law. What you are looking for is a solicitor with a background in administrative law and perhaps construction law as well but he would also have to have a grounding in Summary Application type appeals to the sheriff court. This is the type of work that I do but JA do not allow experts to take on cases from the site for obvious reasons.I suggest that you call the Law Society of Scotland or use the Find a Solicitor tool at www.lawscot.org.uk to get a suitable solicitor. Or at least one who has read and understands the Act. That is core to the whole issue and is the starting point.
27 years as a practising solicitor.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).