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Monday, September 24, 2007
Water supply
Q: Our son applied for Planning Permission to build his first home on a site prior to our formally transferring the site to him.
In his Planning Permission there is a requirement for more ground for drainage so it now appears that there will be some services outside the area of the site. His water supply will have to come from a well on our land. How do we deal with this?
Do we need to transfer more land to him or is there another way around this that will protect both our and his interests?
A: The first thing that your son has to check is that the site that has been transferred to him is at least as big as that for which Planning Permission has been obtained.
Then, what you can do is grant him certain rights over your land but which will not involve you giving away ownership of that land.
You would grant him what is called an easement to take water from your well, whereby your son will have the right to obtain his water supply from the well on your land but won’t have ownership of the land through which the pipes are laid or the well.
There will be other things that you can authorise him to do i.e. all the things which he requires for the full use of his site in accordance with his Planning Permission.
A separate legal document can be prepared granting the easement that can be registered in tandem with your son’s ownership of the site. In the Deed, you are the persons who own the land that you are granting a right over and are called “the Grantors”.
Your son, who is receiving the benefit of the right is called “the Grantee”. You can grant to your son, his heirs and assigns (which means that the right will go with the property so that if your son sells on the property, a new owner will have the same rights) the right to pass over an area to get to the well on foot or with vehicles of any kind.
You would also grant him the right to the free passage and running of water (and other utilities if required) through the pipes now laid or to be laid under your lands, to connect up to the well marked on the map attached to the Deed, to the supply of water from the well and the right to inspect, cleanse, repair and renew those pipes and for that purpose to enter onto your lands upon giving reasonable notice with workmen and necessary equipment and your son would have to make good any damage caused.
Your son could also agree with you to share in the costs of upkeep and maintenance of the pump for the water supply.
In the Deed, your son would have to give what is called consideration for the granting of the right of way to him – every binding contract must have some consideration no matter how small and it normally would be the sum of €10.00.
If the Title to your property is a Land Registry one, as most are these days, then your son will need to get a Land Registry map properly marked and coloured or a Land Registry compliant Ordnance Survey map on the smallest scale available (usually 1:2500) properly marked showing the easement by an Architect/Engineer.
The map should be attached to the Deed. The Deed should be prepared in duplicate and signed by all three of you so that one of the Deeds is registered and you have one signed document to refer to.
With regard to your son having a house built on the site, his Architect/ Engineer will be giving him a Certificate of Compliance with Planning Permission and Building Regulations when it is completed.
For one-off houses, a Declaration of Identity is usually provided by the Architect/Engineer in which the Architect certifies that the services for the property are comprised within the site but in this case it will have to be indicated in the Declaration that the pipeline and well are located outside the site but that there is a separate Grant of Easement for this.
Should your son be getting a mortgage to fund the building of his home, his Solicitor should let the Lending Institution know that there is a separate Grant of Easement to deal with the water supply outside the area of his site.
Lucy Small practises in Doyles Solicitors mainly in the area of conveyancing and dealing with older people’s affairs. She can be contacted at Doyles Solicitors in Westgate, Wexford on 0539123077.
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