Because of the restrictions that are imposed as a result of drainage easements there is usually an impact on the home or property.
Drainage easements fall into two categories, private and public.
Private easements are generally between two or more land owners or developers of subdivisions. The easement is created to ensure the proper flow of water.
Public easements or easements in gross are created in favour of a public or local authority. They are used by Councils to install pipes to divert storm water. This prevents large accumulations of water during thunderstorms.
Both of these easements affect the homeowner by creating limitations on the use of the property subject to the easement. The homeowner needs to identify the location of any drainage easement and abide by the limitations of use. In addition, the prospective owner of a home must be aware of the easement holder's right to maintain it.
A homeowner is not allowed to place any object in a drainage easement that is created for the free flow of water. This can affect how the homeowner plans their yard for instance because it will prevent the homeowner from placing a bench, shed or any type structure that blocks water flow. The area designated as a drainage easement is off limits for any use other than growing grass and planting flowers. Drainage easements used for the sole purpose of underground pipes will allow for fences, as long as the installation does not damage the pipes.
The easement's owner is responsible for maintaining the easement. Therefore the Council can dig up the storm pipes under the easement to repair or replace them. Normally damages will be repaired. Structures that are in the way of digging up the easement will be removed including fencing. The homeowner has to weigh the benefits of a fence against the risk of a clogged pipe on his property.
The homeowner has to maintain the drainage easement. The grass must be cut and the area kept free of debris. Fallen tree limbs and accumulation of leaves obstruct the free flow of water. The drainage easement must be kept neat and clean.
What you should know
- If disputes arise in relation to an easement, it is recommended that independent legal advice is obtained to ensure that all rights and obligations in relation to the easement are clarified.
- In order for the rights of an easement to be enforced, it must be registered on the title of the land burdened and the land that benefits from the easement.
- It is recommended that when a property is being purchased that the legal advisor is asked to determine whether any easements are registered on the title and if so, whether there is any impact by the easement on your intended use of the land.
- It is not Council’s role to provide advice to prospective purchasers about private easements, or to landowners in a dispute about an easement. Council will only provide advice about an easement in gross that is for the benefit of Council.