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Water Easements

A dry Summer is a timely reminder to consider the importance of water easements, particularly for rural properties.

An easement grants a right for the owner of one property to do something on someone else’s property. There are several types of easements including the right to convey electricity, a right of way and the right to convey and drain water from one property to another.

An easement instrument records the existence and description of the easement. Once the document is created and signed, it is registered on the titles to both or either property.

It is important to be clear about the terms of each easement when purchasing a property or granting an easement to a neighbouring property. The Land Transfer Regulations 2002 imply certain rights and powers into easements unless they are specifically altered in the easement instrument.

With respect to the right to convey water, this includes the right to take and convey water in free and unimpeded flow from the source of supply. It also includes the use of pumps, pipes, storage tanks and water-purifying equipment. The Regulations prevent the grantor of the easement from doing anything on their land which may cause the purity or flow of water to be diminished or polluted.

The rights and obligations implied by the Regulations are couched in fairly wide terms and grantors of easements may wish to consider altering the rights in the easement instrument, particularly if the water supply on their property is limited. The grantor could regulate the water supply by liming the amount of water that can be taken or specifying the uses to which the water can be put.

Many rural property owners have informal or “gentlemen’s” agreements regarding access to neighbouring water supplies. These agreements may persist over several years however it is important to note that they do not amount to easements and are not legally binding. If the property enjoying access to the neighbouring water supply is sold, the new owner has no right to access the water supply in the absence of an easement.

For more information on easements, contact one of the property law experts at Arnet Law.

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