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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10772
Experience:  30 years as a practising solicitor.
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My house was built as a detached property in Aberdeen in 1926

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My house was built as a detached property in Aberdeen in 1926 and I have lived in it for the last 22 years. When I bought the house there was an existing single story extension to the next door property directly attached to the side of my house. I think the extension was built in the 70's or early 80's, possibly without planning permission or building warrant approval. The extension was built in such a way that my guttering was effectively 'embedded' into the new flat roof, with the roofing felt from an upstand in flat roof extending down into my guttering to form a seal.

About 12 years ago I started to notice severe damp on the walls in the rooms adjoining the extension and some rot in the floor joists. This was being caused by my guttering which had rusted over time and started to leak, directing large volumes of rain water into walls between the two properties. However, because access to the guttering was severely restricted by the (higher) adjoining flat roof, it proved impossible to replace the guttering without significantly breaking into the neighbour's flat roof, which the neighbour was not keen to agree to do. In view of our good relationship and the urgent requirement to prevent further damage I agreed with the neighbour that a 'slope' be built from my roof to her's, bridging the problematic guttering and upstand so that my roof would then drain directly on to her's.

Last year a new neighbour moved in and is now building a new extension to enlarge the existing extension. The new and existing parts of the roof will be seamlessly joined to form a single larger flat roof area. The neighbour wishes to cover the new roof area (and the slope) with a new fibreglass finish and has asked me to contribute £850 to the cost. I have reluctantly agreed to the contribution on a 'without prejudice'/ goodwill basis. The new neighbour is an extremely opinionated person and she has made it clear that she is not happy about me using her roof for my drainage. Her architect has made a statement to me in writing that she would be within her rights to instruct me to remove the "illegal" slope'. My response is that the slope is a shared roof and not a part of my property overhanging hers as he asserted. However, if the slope was removed I would be back to square one with no way to protect my property from water damage.

My points/questions are as follows:
1. The existing arrangement was a compromise and, whilst it provides a reliable watertight solution, it also represents a fire hazard between both properties and, according to her architect, would not meet building control standards.
2. Could the new neighbour (or her successor) instruct me to remove the slope and make alternative arrangements to drain my roof? By the way I engaged a roofing expert who advised that there are no realistic alternatives to what is currently in place other than to reduce the height of the neighbour's extension and form a box gutter in the flat roof (or reinstate the guttering if room permitted).
3. My rights of drainage were initially interfered with and ultimately obstructed by the way the extension was constructed. Should I take any action (e.g. solicitor's letter) to prevent my original right to drain the roof via guttering being extinguished though non-use? My concern is that if problems arise in the future I might be at the mercy of the neighbour or her successor to agree to major reconstruction work to their extension to protect my property and this is an issue that might end up in court.

Any guidance would be much appreciated.

Thank you for your question.

Do your title deeds say anything about common rights or drainage?
Customer: replied 3 years ago.
I can see nothing in house deeds (dated 1926) or the 'Feu Charter'(dated 1905 relating to the area of ground now forming most of the street) that refers to common rights or drainage other than boundary fences and sewers. It is also unfortunate that the plans attached to both those documents are missing and can't be located. I was hoping to be able to ascertain whether or not the boundary line was on the adjoining wall or whether it made allowance for overhanging gutters. Initial measurement indicate that the distance between the houses on either side of my property is some 4" less than the dimensions stated in the deeds, but I don't think that gets me very far.
1. Anything that doesn't meet building control standards and, worse is a fire hazard, has to be looked at and alternatives considered.

2. Your neighbour could try to get you to remove the slope on the basis that you have no title. However, if the arrangement has been in place for over 10 years, you could argue that you have a prescriptive right to discharge rainwater onto her roof and that a servitude has been created by usage.

3. I'm not sure that a solicitors letter would really change anything. Your right can't be extinguished by non usage as it's not a servitude right. It was drainage in respect of your property on your property. You could be in a deadlock situation where you insist that your neighbour ceases to impede your drainage and the neighbour says that you are interfering with her extension. There is no easy answer.
Customer: replied 3 years ago.
Thanks for your prompt response but I'm afraid this doesn't move me forward too much:

1. Unfortunately there are no obvious alternatives without going to court, which why I'm trying to establish the legal position. The 'correct' technical solution would almost certainly entail the reconstruction (lowering) of the neighbour's flat roof which would be an extremely expensive alteration.

2. I have researched published Scots law cases between private individuals and nowhere I have found a prescriptive period of 10 years being mentioned, the prescriptive period in all cases (and Scots law websites) I've looked at is 20 years. In an answer to a question on this website in relation to a private right of access dispute between two neighbours over the location of a water pipe you previously stated: "A prescriptive right arises where there has been an exercise of a right of access or other right for a continuous and interrupted period of 20 years without previous objection from the current or previous owner." This is also my understanding of the position is Scots law. Obviously it would help me greatly if the prescriptive period were 10 years.

I'm not sure if 'title' is an issue here given the slope is not mine but a shared roof paid for by both parties and extending over both parties' solums.

3. The right of servitude I was alluding to was the right of overhang as guttering necessarily extends beyond the line of boundary wall (I assume the end of my house wall is on the boundary in the absence of evidence to the contrary). This right was exercised for well over 50 years until it was effectively prevented by the poor design of the neighbours extension. If this right were extinguished by non-use it could put me in a very difficult position in any future action.
Sorry in this instance the prescriptive period is 20 years. When I dealt with your question earlier I had "title" in my head and a title can be created in certain circumstances after 10 years, but not here I'm afraid. Ignore my earlier comment.

If you are arguing a right of servitude, ie, the overhang, then it would be created by long negative prescription, ie, 20 years and would be extinguished in the same way.

See section 8 of the 1973 Act:

"8. Extinction of other rights relating to property by prescriptive periods of twenty years.

(1) If, after the date when any right to which this section applies has become exercisable or
enforceable, the right has subsisted for a continuous period of twenty years unexercised or
unenforced, and without any relevant claim in relation to it having been made, then as from the
expiration of that period the right shall be extinguished.

(2) This section applies to any right relating to property, whether heritable or moveable, not being
a right specified in Schedule 3 to this Act as an imprescriptible right or falling within section 6 or
7 of this Act as being a right correlative to an obligation to which either of those sections applies."

The problem here is that whilst you want a black and white legal solution, the fact that you and your previous neighbour entered into and implemented a verbal agreement does not help at all. Whilst you acted from the best of intentions to achieve a practical solution the legal steps were not taken to create the rights and obligations needed to give you, and indeed your current neighbour, legal certainty and in the absence of agreement between you the situation is a bit of a mess.

You removed your guttering some time ago in favour of the overhang. There was no contract entered into nor any heritable deed signed and registered which would be binding on successive proprietors. That is the purpose of our system of property law: to avoid the type of situation that you are in.

That is why I have said there is no easy answer if a solution is not achieved by negotiation. Were it to go to court I foresee problems there too in the absence of a title condition. You may end up with an action argued on the common law of nuisance which would be entirely unsatisfactory.

I have to say, with some reluctance, that I think you have limits options here and that you should try to negotiate a solution that can then be put into some kind of Deed of Conditions and registered so that this situation cannot arise again.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 3 years ago.
Thanks JGM - pretty much what I suspected. I guess it may help my case to argue that, whilst I did remove the guttering, it was a course of action I was forced into to mitigate further damage to my property caused solely by the poor design and construction of the neighbour's extension. It doesn't seem fair as I'm the one with the potential long term problem with no apparent legal or technical solution!
I agree it's not fair. However, I hope that you can find a solution.