Q: The drains from our house run into a pipe that goes under next door's garden. The pipe is getting quite old and it now runs quite slowly. On occasions, the pipe backs up, although thankfully not into our house. The neighbour says that it is up to us to sort out the problem and that we will have to pay for the whole cost. It would make more sense to reroute the pipe completely, but the neighbour will not agree. What can I do?

A: You almost certainly have a legal right (an “easement”) to drain your waste through the pipe on your neighbour's land, either as a formal right or as a result of an implied obligation. The more important question is who is required to mend the pipe. I assume there is nothing at the Land Registry or in your title deeds that says who is responsible for maintenance, but it is always worth checking.

Unless there is a specific agreement, the general rule is clear. The owner of land over which someone has an easement is under no obligation to maintain or repair it. Responsibility lies solely with the person who has the right to use the easement - in legal parlance this person is known as “the owner of the dominant tenement”. The rule applies equally to pipes and to other forms of easements, such as rights to use paths or roadways.

Theoretically, the owner of the dominant tenement is not positively required to carry out repairs, but in practice he is. This is because if the pipe breaks and causes a flood, the landowner can sue the owner of the dominant tenement for the damage caused. Although not obliged to repair the pipes, the landowner cannot go any further. He is not allowed actively to block the pipe or otherwise interfere with your easement.

You have no right to lay a fresh drain along a different course (no matter how sensible that may seem) because that would amount to an entirely new easement. However, an easement of drainage will include by implication any ancillary right necessary to protect it. If there is a problem, you therefore have an implied right to go on to your neighbour's land at any reasonable time to repair and maintain the pipe.

The writer is a barrister at Tanfield Chambers. E-mail your questions to: property.consumer@thetimes.co.uk

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