Irish Times Property Clinic 14th day of May 2015.
Publishing Date; Thursday the 14th day of May 2015.
Q I live in the middle of an inner city terrace and have a problem with open drains from my next door neighbour’s front drains.
The neighbour’s house consists of four flats. Their kitchen wastewater flows into an open drain in the small front garden, adjoining my front garden. Wastewater from their property overflows into my garden. When I checked their drain recently I could see traces of spaghetti – whatever goes down their sinks can be seen in the drain.
I have phoned and written to the agent managers of the house as I do not know the owner’s name. Nothing has been done to remedy the situation.
What else should I do to get this situation sorted? I am concerned about flooding in my garden and under my house. There is also the health issue – if I can see spaghetti in the open drain, so can rats and other vermin.
If I sue/send a solicitor’s letter, will I succeed in getting this issue sorted? Who should I contact regarding the waste food being visible?
A An act of nuisance falls under Irish Tort Law, that is to say you are suffering an unreasonable interference to the enjoyment of your land which originated from another’s land. In this case it can be considered a private nuisance.
You should record all damages to your land as a direct result of the events of the alleged private nuisance as it will be required as evidence should the matter go to court.
In general, it is the occupant who is the liable party for the private nuisance and not the landlord, provided they are not a joint occupant. If the occupant has evidence that the landlord has authorised them to continue with the act of creating a nuisance to you then the landlord will then assume liability.
It would be reasonable to assume that the landlord is aware that the kitchen would be used along with the kitchen drain and would therefore most likely assume liability. The assumption is based on the fact that the use of a kitchen facility in a residential property is inevitable and intended for use as agreed within the lease agreement.
You may wish to consider checking the Land Registry online on landdirect.ie, or if the property is not registered then check with the Registry of Deeds so as to identify the owner of the property and write to the landlord advising of the alleged private nuisance.
Your written communication to the landlord should be by registered post and contain specific evidence of the alleged private nuisance. Your first letter should be non-threatening and provide your contact details with the aim of resolving the matter amicably.
Should the matter persist, you might consider legal representation from a competent solicitor that can provide you with the anticipated legal charges in writing as required by the Law Society.
Alternatively, the Litter Pollution Act 1997 prescribes that the owner of the property must keep the private land that is viewable from a public place litter-free. Your local county council might be in a position to intervene if the matter deteriorates further and warrants their participation.
Paul Huberman is a member of the Society of Chartered Surveyors Ireland (SCSI) Property and Facilities Management Surveying Professional Group
Author: Paul Huberman of H&H Property Management Consultants Ltd
Publish Date: 14/05/2015