Claim Case Study: Servitude Drainage Background The insured purchased the property, a fourbedroom detached house, in Scotland as their family home in March 2016. The property was connected to a septic tank located on a neighbouring farmer’s land, but it did not benefit from an express legal right to drain into the septic tank. The septic tank had been in place and used by the property for many years before the insured’s purchase, and the policy was obtained to cover the property’s lack of formal drainage rights.
Challenge Some six months later, the septic tank was found to be leaking and in desperate need of maintenance and repair. When the insured tried to resolve the situation the owner of the land, on which the septic tank was located, obstructed the insured’s access to, and partially covered, the septic tank with rubble and hay bales, thereby preventing the insured from carrying out the necessary repair works. The neighbour alleged that the insured had no right to use or access the septic tank.
Solution The insured was fortunate to have a policy for a lack of drainage servitude with First Title. It was clear from the evidence that the insured benefited from a servitude right of drainage by
Call: +44 (0)141 413 8800 Email: scotinfo@firsttitle.co.uk Visit: www.firsttitle.co.uk First Title Insurance plc is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. First Title Insurance plc is registered in England under company number 01112603. Registered office: First Title Insurance plc, ECA Court, 24-26 South Park, Sevenoaks, Kent TN13 1DU.
prescription. In the first instance, the possibility of reaching a resolution with the neighbour was explored. Unfortunately, an amicable resolution proved impossible to achieve and, therefore, Court action was instigated. Interim interdict orders were obtained from the Court to prevent the neighbour from obstructing the insured’s servitude right of drainage and requiring the neighbour to remove the rubble and hay bales. A Court action was also raised for a decree of declarator in respect of the insured’s servitude rights. Ultimately, in the lead up to the Court hearing, an offer of a servitude was received from the neighbour whereby he would grant the insured a full legal right of drainage over his land (together with rights of repair and maintenance) and enter into further negotiations regarding the exercise of these rights. The offer was made on a drop-handsbasis, with both parties bearing their own costs. In order to bring a swift end to this action for the insured and prevent the hearing proceeding in Court, the neighbour’s offer was accepted. A joint minute was obtained from the neighbour, agreeing to the existence of the servitude right of drainage and vacating the hearing to negotiate terms. Terms were subsequently finalised which were agreeable to the insured. All the legal expenses incurred on this claim, including all the court actions, were paid by First Title under the terms of the policy.
Leading Title Insurance 1361-0919-Scot