Mutual Agreement Drains
This eReference tool is not a substitute for specialized legal advice. Always consult a lawyer before implementing any drainage changes to your property or operations or considering any legal action.
When two or more owners of land desire to construct or improve a drainage works on any of their lands and are willing to pay the cost thereof, they may enter into a written agreement for the construction, improvement, financing and maintenance of such drainage works.
Mutual agreement drains are drainage systems constructed, improved, financed and maintained through an agreement between two or more property owners. These drains are authorized under section 2 of the Drainage Act. Mutual agreement drains are private drainage systems there is usually no involvement of the local municipality or any government agency, unless they are party to the agreement as a property owner.
Shared drainage systems are often constructed by different forms of agreement.
Oral agreement when one property owner allows another to construct a drainage system across their property. An oral contract can be binding, but only if it has been witnessed, and is not binding upon any subsequent owners of the involved properties.
Written agreement a contract between property owners concerning the construction of a shared drainage system. The agreement usually specifies the details of the drainage system, the responsibilities for construction or maintenance of the drainage system and cost-sharing arrangements. A written agreement is binding on the parties to the agreement, but is not necessarily binding on new property owners after the sale of one of the involved properties.
Mutual agreement must have the seven attributes set out in section 2 of the Act, but is registered on property title. These agreements are binding on all current and future owners.
A mutual agreement drain exists through an agreement between landowners that is registered on the property title. Construction, maintenance and repair are the responsibility of the involved property owners as detailed in the agreement.
A municipal drain is a drainage system that legally exists through a bylaw passed by the local municipality. The municipality is responsible for constructing the drainage system and future maintenance and repair, and costs are recovered from property owners in the drain watershed.
Check your property information at the registry office. If a mutual agreement drain exists on your property, a copy of the agreement should be registered on property title. There may be a fee to obtain information about your land title. Take your municipal tax bill or other information to the registry office to show your lot, concession and property information.
The first step in developing a mutual agreement drain is to negotiate the agreement with all property owners involved. This is the most important step. If you are able to negotiate an agreement, the next steps are:
For the shared drainage system to be considered a "mutual agreement drain", section 2 of the Drainage Act states the following must be in the written agreement:
These are the minimum requirements for a mutual agreement drain. Additional terms can be added to the agreement, including:
Why do I need a mutual agreement drain? Why can't I just outlet my drainage system at the property line and let my neighbour deal with the water?
You may not necessarily have legal right to divert surface water. The right to divert surface water must be acquired, and a mutual agreement drain is one method of acquiring this legal right of drainage.
I'm putting in a tile drainage system on my land and my neighbour is allowing me to take a pipe across their land to the outlet. We have a great relationship. Why should I bother with a mutual agreement drain?
A mutual agreement for the drain is not required, but recommended. There are two important factors to consider.
My neighbor wants to install a tile drainage system on their land but need to install a pipe across my land in order to bring the water to the municipal drain. They are prepared to pay all the costs. Should I allow them to do it? What are my responsibilities with a mutual agreement drain? What are the benefits to me?
Entering into an agreement
You have the right to refuse to allow your neighbour to cross your land with the pipe. But if you do, what recourse does your neighbour have? If there is no reasonable or legal alternative for the water to flow, they may be forced to petition the municipality for a municipal drain. If they are successful, a municipal drain could be forced across your property, and you could be forced to share in the cost of the municipal drain.
The most important element of a mutual agreement drain is the agreement. Your responsibilities for the mutual agreement drain towards the other party are whatever you agree to.
The agreement protects you with respect to the other party. Imagine there is no agreement, and after 10 years, a section of the pipe on your property blocks and the water seeps to the surface. Without an agreement, you may be responsible for fixing the pipe with no means of collecting any share of the cost from your neighbour.
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