Q: I own a two storey residential property in the city. The outer face of the side wall is constructed along the boundary with an adjoining privately owned access road to a residential-commercial building.
The problem I have is that the owner of this adjoining property has not cooperated to date in giving me access to repair a drainage pipe attached to the side wall of my property which drains the roof to a surface water pipe located in the access road.
My questions are:
1. Who owns this pipe attached to my property?
2. Is the adjoining owner within his rights in preventing me access to repair the pipe?
A: I assume from your description that the face of the wall to which the pipe is attached is on the legal boundary between your respective properties. The drainage pipe, which is therefore located on your neighbour’s property is likely to be in your ownership as it is an integral part of your building. The pipe in the ground, to which it is connected, is likely to be in the ownership of your neighbour, but its maintenance would be the joint responsibility of those whose properties it serves unless an alternative agreement or arrangement is in place.
Your rights of access to repair the pipe are provided for under the Land And Conveyancing Law Reform Act 2009. This Act provides for access, if necessary, through your neighbour’s property for the purposes of inspection, repair or replacement. Sections 43 to 47 of the Act provide for a wide interpretation of boundary situations and a wide range of maintenance and repair requirements. Section 43 of the Act specifically provides for the renewal, replacement or repairing of drains, pipes and sewers.
Since your neighbour refuses to permit access for the required work you can apply to the district court for a works order to carry out the work. Under the Act the court has the power to grant the works order authorising the carrying out of the work on such terms and conditions as the court thinks fit in the circumstances of the case. Any damage caused to your neighbour’s property in the course of the repair work should be made good.
If the pipe is located on your property but in such proximity to the legal boundary between the properties that access to repair it is required through your neighbour’s property, the provisions of the 2009 Act, as described above, apply.
In the event that your neighbour continues to refuse access and you have no option but to seek a works order from the court, it is advisable to have the relevant information and facts set out in advance for your solicitor so that he/she can make an informed application to the court. This should include a description of the location of the pipe, a written assessment of the repair required, photographs if possible and the reason why the repair is not possible without access through your neighbour’s property. The assessment of the repair required should be made by a competent person.
Patrick Shine is a Chartered Geomatics Surveyor, a Chartered Civil Engineer and a Member of SCSI, scsi.ie
