WATER SERVICE LETTERS and MAPS – Where did this come from?

I have recently been asking a question to which I have not yet received a satisfactory answer.

The question is quite simple – “why are we having now to produce, when acting for a Vendor in the sale of a residential property, an official letter and map from Northern Ireland Water relating to the location of the services”.  Nobody seems to know why or how this relatively new practice has suddenly appeared.  This is one of the reasons why a modern residential conveyancer has to continually adapt, not only to new legislation or regulations that are introduced, but also to practices that may just appear.  The evolution of such practices can be random and possibly commences from some obscure difficulty that arose in another transaction.

In the Eighties and Nineties residential conveyancers spent more and more time dealing with Building Control issues than with title or other normal conveyancing difficulties.  The introduction of the Home Charter Practice Direction which removed the responsibility of the Vendor’s solicitor having to produce historic Statutory Approvals for alterations that were carried out more than 10 years ago radically improved the situation.  It shifted the burden from the Vendors to the Purchasers to instruct their surveyor to determine whether the alteration was structurally sound or not.   This is an example of how residential conveyancing problems can evolve from a minor problem to a major issue and at the height of this problem the Vendor’s solicitor was basically being asked to produce all Planning and Building Control documentation for any alterations that were ever carried out to the property.  This included alterations possibly even prior to the introduction of the modern Planning and Building Control Regulations in the early 70’s.

Recently Purchaser’s solicitors have been asking Vendor’s solicitors in some transactions to produce a letter and a map from the Northern Ireland Water showing the location of various pipes, sewers and drains.  Initially when I was asked to do this, I didn’t feel that there was any major difficulty but as this practice has grown, I have experienced quite a few problems in relation to the same.  This led me to question as to why and how this practice has arisen.  As stated above I still haven’t received a satisfactory answer to this question.

In my search for an answer to my question I looked at some Title Documents and I did notice in one particular transaction, dating back to 2006, that there was the Water Service letter and map.  However the letter was completely different from the current letter that is now issued.  I’m not sure if you could have obtained such a letter and map prior to 2006 as I don’t know when this service was introduced by Northern Ireland Water.

I think this is a relatively new practice that may have commenced with the change in the wording to the reply to the DOE Property Certificate Enquiry No. 2.   The DOE Property Certificate may stipulate that a pipe, drain or sewer “traverses” the premises.  It is this word “traverses” that should then alert the Purchaser’s solicitor to request the letter and map from Northern Ireland Water.  This practice is now becoming so common place that a prudent Vendor’s solicitor is best advised to request the map as soon as the DOE Property Certificate has arrived if it contains the word “traverses” in the reply to Enquiry 2.   The impact of this, is that in our practice we have now decided that it is better to apply for the DOE Property Certificate as soon as you receive instructions to see if you need to obtain the Northern Ireland Water letter and map.  There can be some delay in obtaining the same and it is preferable to try and deal with any problems in relation to the letter and map at the earliest possible stage in the transaction.  In these recessionary times some firms of solicitors are holding back in applying for Property Certificates until the Purchaser’s solicitors confirms that the finance is in place.  The difficulty with this approach is that the DOE Property Certificate may arrive close to the proposed completion date and therefore all sorts of problems can arise if there is a delay in receiving the Northern Ireland Water letter and map or if the map and letter are unsatisfactory.

In my own defence, the reason why initially I was rather relaxed about the production of these letters and maps was that I felt it was simply pointing out the location of pre-existing services so that the Purchaser could simply know their whereabouts.  This relaxed attitude changed when a difficulty arose with a transaction that I was involved in when the wording of the letter from Northern Ireland Water nearly put off a potential Purchaser.  The wording is very specific and when sent to a Purchaser they can be understandably concerned, as it may appear to prohibit them extending or altering the boundaries to the property as they may encroach onto the existing pipes and drains.

It was approximately a year ago that I suddenly realised when two potential Purchasers nearly withdrew their offers on receipt of the letter and map that this has now developed into a significant problem.  I had to discuss in some length the nature of the letter and map and to some extent I reassured my Purchaser clients that I did not believe that the document would put off potential Purchasers in the future.

Shortly after this I was involved in a sale where the map showed that a drain ran across the rear of the property we were selling and behind an adjacent row of approximately seven properties.  The drain was close to the rears of all 8 properties.  From the map it was clear that 7 or 8 of the properties, including the property that we were endeavouring to sell, had extensions or garages built over the drain.  The Purchaser’s solicitor requested us to obtain “an overreaching Agreement” from Northern Ireland Water.  This obviously could have been difficult and we immediately contacted Northern Ireland Water.  We advised them that the premises were approximately 60 or 70 years old and we assumed therefore that the drains were of the same vintage.  Northern Ireland Water indicated to us that they were not able to or willing to provide retrospective overreaching Agreements.  I was relieved to be advised of this, otherwise this growing problem could have developed into a catastrophe.

Occasionally I have come across an overreaching Agreement.  It is simply a document that allows a Planning Application to proceed close to a sewer or drain and gives extended rights to the appropriate Department to excavate the extension or alteration if the need arises.  Also the DOE do have legislative Authority to carry out works to main sewers, pipes and drains.  Therefore the idea of having to obtain new overreaching Agreements in connection with pipes and drains that have been in situ for many decades in my opinion is neither possible or required.

As always there is an exception to this situation and that is in respect of the unauthorised alteration or extension that has been erected or constructed without Building Control or Planning within 10 years from the proposed sale of the property.  However in these circumstances the Purchaser should be advised that it is not really the lack of the overreaching Agreement that should concern him but the suitability of the building or extension that has been erected.  Therefore the issue should really be one for a surveyor to advise upon rather than a solicitor.   If these circumstances arise the Purchaser’s solicitor should point out to the Purchaser that the surveyor would need to confirm whether the structure is sound and the fact that there is no Building Control Approval could be dealt with by a request for a Regularisation Certificate.

A final solution to this problem is if the circumstances that arise, particularly in the above paragraph, then it is a risk that can be insured against.  The Defective Indemnity Insurance Companies are keen to branch into new avenues where they can provide Policies.  This is an area that can be insured against and Policies have been issued with reasonable premiums.  In my opinion it is not necessary for a Policy to be required in every situation where the pipe or drain traverses the property.  The circumstances of the situation need to be reviewed and a sensible risk assessment should be undertaken.  I believe that if the pipes, drains, etc., have been in placed for more than 10 years then it is unreasonable for the Vendor to provide the Defective Indemnity Insurance Policy.  The Purchaser then has the right to obtain the Policy themselves if they so wish and are concerned about the risk after the surveyor has examined the premises.

It never ceases to amaze me how conveyancing problems evolve and I am genuinely alarmed at how much of my time is currently being spent in dealing with this new problem.