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.

What is a mutual agreement drain?

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.

How are agreements formed?

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.

What is the difference between a mutual agreement drain and a municipal drain?

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.

From a landowner's point of view, what are the advantages of a mutual agreement drain over a municipal drain?

  • Agreement drains are usually cheaper to construct than municipal drains;
  • Repairs and maintenance do not depend on a public body, and can often be performed at a time more suitable to the involved property owners;
  • Agreement drains begin with an agreement between owners, and are constructed much more quickly than municipal drains;
  • Landowners must remember that any work in or near watercourses is subject to other laws such as the Conservation Authorities Act and the Fisheries Act. The local conservation authority or Ministry of Natural Resources offices are good places to find out what laws may apply.

From a landowner's point of view, what are the advantages of a municipal drain over a mutual agreement drain?

  • The drainage system constructed as a municipal drain becomes municipal infrastructure, and the municipality is responsible for having work done and complying with environmental regulations;
  • Occasionally, grants may be available for assessments on agricultural land for the construction of municipal drains, and for future maintenance and repair work. No grants are available for mutual agreement drains;
  • Mutual agreement drains are often impractical when major roads, railways or utilities are involved, but can be effectively and fairly dealt with through the municipal drain process;
  • The drainage system is designed by a professional engineer or surveyor. Mutual agreement drains are often designed by the property owner or the contractor hired by one of the involved property owners;
  • The engineer estimates the cost-sharing for a municipal drain. A mutual agreement requires property owners to determine cost-sharing – a process that can be difficult.

How do I find out if I have a mutual agreement drain on my property?

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.

How do I enter into a mutual agreement for drainage?

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:

  • check the environmental regulations to determine if any approvals or authorizations are required to construct the drain, that may influence what was agreed upon;
  • have a lawyer draft up the agreement and arrange for it to be registered on property title – you can do these things without a lawyer, but legal counsel is recommended;
  • construct, improve and maintain the drain in accordance with the agreement.

What must be in the written agreement for a mutual agreement drain?

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:

  • a reference to the Drainage Act, R.S.O. 1990;
  • descriptions of the lands of the parties to the agreement;
  • the estimated cost of the drainage works;
  • a description of the drainage works, including its nature and approximate location;
  • the proportion of the cost of the construction, improvement and maintenance of the drainage works that is to be borne by each of the owners of the lands;
  • the date the agreement was entered into;
  • an affidavit of a subscribing witness to the signing of the agreement by the parties.
These are the minimum requirements for a mutual agreement drain. Additional terms can be added to the agreement, including:
  • who will be getting the necessary approvals;
  • who is going to coordinate the construction of the mutual agreement drain on affected properties;
  • who is going to be responsible for any future improvements, maintenance or repair of the mutual agreement drain;
  • time restrictions for entering onto the land to construct or maintain the mutual agreement drain.

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.

  • The time to enter into a mutual agreement drain is when you get along with your neighbour. If you're not getting along, there's little chance of entering into a mutual agreement later on.
  • You may be about to invest thousands of dollars on your neighbour's land. What protection do you have for that investment? An oral contract gives you the right to install the pipe, but do you have any claim to the pipe after it's installed?

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.

Responsibilities

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.

Benefits

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.

Additional resources


For more information:
Toll Free: 1-877-424-1300
E-mail: ag.info.omafra@ontario.ca
Author: OMAFRA Staff
Creation Date: 27 April 2011
Last Reviewed: 27 April 2011