Preventing Easement

10 years ago

Currently the house next to ours has their water draining onto our property. By onto, I mean the drainage pipe comes out on our property, so there is no setback. With the way the yards are graded the water would be running in our yard even if it were on their property. We each have 5 acres and I'm not sure if they intended it to drain right by our house since every person that comes over (including ALL subs, we are in the process of building) comments on how their grading/drainage looks like a mistake. At this point it is what it is.

In attempts to remove the river they have running through our yard, we are thinking about letting them run the pipe across our yard and dump into the swale. Does anyone know if there is a way to draw up a contract stating that just because the pipe is there it doesn't mean that they have an easement? Or is there an automatic easement because the pipe is there? We are concerned about repairs and being legally allowed to remove it if we wished. Could this contract be transferrable to new owners if they would move? To clarify, this drainage is for water only, not sewer/septic.

Comments (10)

kirkhall
10 years ago
If it is on your property,
why don't YOU install the pipe (and maintain that pipe).
Then no easement.
LuAnn_in_PA
10 years ago
Wouldn't it be easier for them to just move the drain pipe away from your property?
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RaphaelH
10 years ago
First, it is not possible to give a complete answer regarding your rights with respect to your neighbor, without knowing where you are located and what kind of drainage plan or covenants might be recorded against your property.

Generally, whatever agreement you come up with could be binding on the subsequent property owners if the agreement says so and it is properly recorded in your local real estate records, following whatever formalities are required in your jurisdiction.

I think you are getting too hung up on the term "easement" and I don't think you have thought through what you want an agreement to accomplish. kirkhall is right, you can drain the water off of your property without entering into any agreement. If you are asking for cost sharing for this project, then your neighbor probably isn't going to agree to allow you to remove it at any time.
worthy
10 years ago
I would check with the jurisdiction having authority whether there are any prohibitions against your neighbour's manner of drainage. Where I build, I have to provide an independently drawn drainage plan that requires all water be retained on the property through swales, drywells, whatever it takes. I just can't run a pipe to my neighbour's property.

As mentioned in the previous post, what state you're in is vitally important too. Completely different rules apply to "upper" and "lower" landowners in the states following different legal theories. See here.

This post was edited by worthy on Mon, Nov 4, 13 at 19:31
worthy
10 years ago
Duplicate

This post was edited by worthy on Mon, Nov 4, 13 at 19:29
h5home
Original Author
10 years ago
Thanks for the feedback, I'll try to clarify a bit. As it stands, we don't have issue with them running a pipe across our property. They have a walk out basement that is poorly designed with no drainage away from their house, just pumped. The pipe that runs on our property is pumped from their sump. (Across our property is the only way for them to have any drainage day lighted.) It will be approximately 8+ feet deep. What we our concerned with, is in the future, having the ability/right to build an out building on top of this and have any responsibility to maintain or deal with any issues that may come up. Also, we are in Ohio.
ILoveRed
10 years ago
In my old neighborhood a new home went up on an empty lot.

The grading created drainage and water problems for the next door neighbor (not us).

It was not allowed and they were legally forced to rectify the problem.

I don't remember the exact details, but I wonder if similar circumstances apply here.
bus_driver
10 years ago
The pumped water might make it a different ballgame. In general, if the natural slope that existed would run natural rainwater runoff across your property, then you must continue to accommodate that water flow with no hindrances.
I think I would consulting a real estate attorney for advice.
worthy
10 years ago
According to the linked article by Ohio lawyer Paul Wright, state case law on water follows two contrary theories and a new one that may favour your case.

Rushing to build an underground drainage pipe and giving the adjoining owner is not something I would do. (But then, I am someone who has sued my own solicitors and couple of times.)

As the article concludes:

"The laws which govern water rights in Ohio are complex and uncertain in many areas. It is wise in many instances to consult a qualified attorney before using water commercially or constructing a drainage improvement, especially if neighbors will be affected."

Here is a link that might be useful: Water rights in Ohio
LawPaw
10 years ago
Whether they have the right to drain water and whether you grant them an easement are two different issues.

Your idea of having him pay to drain the water where you want on your property sounds like the most neighborly thing to me. You can say in the agreement that you aren't responsible to maintain it, it doesn't run with the land, and that you can have it moved, removed to improve your property.