PROPERTY CLINIC: Q Although our house is only 10km from a major Irish city, we live in what is essentially a rural environment. Each of the houses built around us and including our own are on approximately 9/10 of an acre. Over the years we have cultivated trees, flower beds and vegetable plots, and have an unobtrusive greenhouse that is a reasonable size.
Our immediate neighbours on one side own various animals and are keeping them around their house. These include horses, chickens, ducks, dogs and goats – and there may be more. Our property is divided by a young Leylandii hedge about 1.5m high planted by us and some minimum fencing on the part of our neighbour.
Consistently over the last number of years, goats and chickens have strayed on to our property.
Goats in particular are doing enormous damage to our flower beds and the chickens are picking at our long borders and destroying expensive flowers.
We have attempted to protect our beds with chicken wire and other additions but to no avail.
We have drawn attention to the animals straying on to our property to our neighbours but they are dismissive and do little to erect barriers on their side, or they insist that the animals will do no harm.
This has caused a breakdown in our relationship as they are unresponsive to our comments and unsympathetic to our circumstances. We do not begrudge our neighbours their animals, we just want them to better control them.
What is our position in law?
A It would appear that your neighbours may be responsible for creating a nuisance and for “cattle” trespass. Liability in nuisance arises where a person keeping and managing animals wrongfully interferes with a public right or with another landowner’s reasonable use or enjoyment of his or her property.
If animals are kept in unreasonable numbers so that by noise, smell or otherwise they interfere with the lawful use or enjoyment of private property, the owner of the animals can be liable in private nuisance. In a leading decision, a complaint was brought in respect of the bees kept by a neighbour. The jury found that although a person is entitled to the natural and reasonable use of his/her land, the manner in which the bees were kept went beyond the lawful use of the land and caused an actionable nuisance to the neighbour.
The second ground under which a claim could be made is that of “cattle” trespass. For the purpose of this rule the term “cattle” also includes horses, sheep, goats, pigs, asses and domestic fowl.
This rule states that “cattle” which stray from the owner’s land on to another person’s property will render the person in possession and in control of the animals liable for any damage caused by the animals. Liability is strict and it is not necessary to prove negligent behaviour on the part of the person in control of the animals.
This is a special rule and liability arises only where the “cattle” stray of their own volition. The rule applies where the cattle break from one field into an adjoining field and also where cattle stray from their own field on to the highway and thence on to another person’s property. As cattle trespass is primarily considered to be a wrong against land you would have a case for recovering the costs of any damage to your garden.
It would obviously be more desirable for you to resolve this situation in an amicable manner through dialogue with your neighbours. In the event that your neighbours are unwilling to take action to prevent their animals straying on to your property, you have the option of seeking an order compelling them to take the steps necessary to prevent further damage to your property.
John Lynch is a partner in the litigation department of WhitneyMoore
Q We’ve just had an offer accepted on a house in Co Wexford. There is a septic tank and we are concerned about all the recent talk about regulations and inspections. What do I need to know/do next to ensure the tank meets all the regulations? Who pays for this – me or the previous owner?
A The new legislation which will affect septic tanks such as the one located on the property that you propose to purchase is the Water Services Amendment Act 2012.
Under this Act all septic tanks and other forms of onsite wastewater treatment systems will need to be registered with the relevant local authority and will be subject to new maintenance requirements and inspections.
In the event that the septic tank located on the property you intend to purchase is adequately and safely treating the domestic effluent from the house, then the inspection by the local authority will be quite straightforward. However, if the septic tank is not constructed or operating properly then it may be causing harm to the environment and possibly contaminating ground or surface waters.
Some common examples of problems with septic tanks are: ponding of effluent on the surface of the ground; overflowing tanks accompanied by odours; excessive sludge build-up; effluent discharging directly to watercourses and streams; and poorly constructed systems or percolation areas.
This is not an exhaustive list, however. In the event of problems with the septic tank, remedial works will be required to ensure no further contamination or nuisance occurs.
Ultimately, the homeowner at the time will be responsible for the cost of this remediation work. The registration process for septic tanks is due to commence soon, with the likely commencement date for inspections to be in early 2013.
To ensure the septic tank on the property you propose to purchase will meet the new requirements, it would be necessary for you or the vendor to have the septic tank desludged by an approved waste-collection permit holder so that it can be properly inspected and assessed. The local authority maintains a register of approved onsite wastewater assessors and you could refer to this list for their contact details to have the system inspected.
Perhaps you could discuss with the vendor or their agent the possibility of this being done prior to signing the purchase contracts for the property and some arrangement could be made about the relevant cost of the inspection. But without vendor surveys, the cost of surveys on behalf of purchasers are borne by the purchaser, and it may well be the case that you would need to cover the cost of any inspection in advance of the register.
Terry O’Leary is a chartered surveyor, and an EPA-approved onsite wastewater assessor
Q We’ve been renting a house in Cork for more than a year and a half. It’s fine but we have a second baby on the way and we need a bigger place with a garden. Do you think we should continue renting and just try to find a bigger place when the lease is up at the end of the year, or is it a good time to buy? If we don’t buy this year I think we will lose out on mortgage interest relief, but if prices are going to continue to fall, maybe we should continue renting on short leases.
A The general consensus among analysts of the property market is that residential property prices are close to bottoming out, although there may still be some minor decreases before prices finally stabilise, depending on location.
We find that family-size homes in good locations with access to schools, transport and employment centres are no longer experiencing price declines at the national average rate.
While house prices are not likely to return to levels seen in the last decade (or anywhere close), it is unreasonable to predict that they will remain at such low levels in the longer term – especially for high-quality stock in the major urban centres.
The decision to buy a home will always be a personal one. If there is to be any further fall in value in the short term, its relevance to your personal circumstances should be considered.
In deciding whether to buy a house this year, your main consideration should be affordability. Prices, relatively speaking, returned to an affordable level in 2011. There is now the added incentive of the mortgage interest relief available to purchasers until December 31st.
People will always question whether it is the right time to buy. However, conditions certainly appear favourable at the moment for owner-occupiers with purchasing power.
John Archer is a member of the southern regional branch of the Society of Chartered Surveyors Ireland
