Who is responsible for open drain nuisance?

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

CGT on sale of property at a loss

Q I have a query regarding CGT please. Approximately seven years ago, we traded up but were unable to sell our original house within the first year and so decided to rent it out. The property valuation at the time was €350,000. We have been renting now for almost six years, but returning a genuine loss each year to revenue when mortgage allowances, repairs etc were calculated.

With property prices now on the rise we are considering trying to sell again but are completely in the dark as to how much CGT we may have to pay. We have noticed that the current market value for a similar house in the area is €300,000. Any help in this regard would be greatly appreciated.

A Capital Gains Tax is a tax chargeable on the gain and as I understand it is the difference between the value when you vacated your property and the sale price when you sell. The current rate is 33 per cent.

This is a tax on gain with the disposal of all assets including:

- All forms of land and property, wherever situate, including sites, be they developed or green field and with or without planning permission, houses, apartments, and commercial property

- Shares in either Irish resident or non-resident companies.

- Governmental Stocks & Securities, other than Irish.

- Antiques

- Paintings

- Jewellery

- Certain capital sums derived from assets.

- All forms of incorporeal property including options and the goodwill of a business.

- Trade assets.

There are various costs that are deductible against the CGT liability such as disposal costs, for example professional fees. Your particular enquiry is interesting in that you have a loss rather than a gain. In essence based upon the information provided with values, you will not be liable to CGT, you do however as I understand it need to make a return. You may require a valuation to support your claim that the value was €350,000 at the time you vacated the property and a Valuation Surveyor could carry this out on your behalf. The disposal value must be the market value and you cannot sell at a loss and be exempt from CGT if the loss is less than the market value which could be a gain. I suggest that you seek guidance from the Revenue Commissioners and there is a useful guide on their website.

John O’Sullivan is chairperson of the Society of Chartered Surveyors Ireland (SCSI) Residential Agency Surveying Professional Group

Preparing a side garden site for sale

Q I have a side garden site with full planning permission for a house build and have had queries about selling it in the past. What process is best for registering it as a site distinct from the current house? Is there minimum distance etc required?

A There are a number of issues you need to consider. Firstly, provided the site is in compliance with the planning that has been granted then you don’t need to worry about a minimum distance between the existing house and the site. Secondly, you will require a surveyor to draw up a new folio map for the site and before this is done the boundaries of the site will need to be clearly defined or marked out. Thirdly, once this map is provided then the site can be conveyed and the title will be clear.

Additionally, if you are selling a site which was part of an existing garden you may decide to share the driveway between the existing house and the site/new build. In this scenario an easement right of way will be required and your solicitor will be able to draft one of these documents up for you.

Ronan O’Hara is a member of the Society of Chartered Surveyors Ireland (SCSI) Residential Agency Surveying Professional Group

Send your queries to propertyquestions@irishtimes.com or to Property Clinic, The Irish Times, 24-28 Tara Street, Dublin 2. This column is a readers’ service. Advice given is general and individual advice should always be sought