Our neighbour has a legal right to the water from our well. How can we stop this?

Property Clinic: Removing a ‘burden’ from a title deed can be difficult without consent

Your neighbour might be entitled to draw from your water supply if your home’s title includes a grant of wayleave, easement or a licence. File photograph: Getty

Your neighbour might be entitled to draw from your water supply if your home’s title includes a grant of wayleave, easement or a licence. File photograph: Getty

 

We inherited a property in a rural area 15 years ago and have been living in it since retiring seven years ago. We have our own well which gives us a constant supply of good quality drinking and general-use water.

In 1991, our relative signed a legal agreement allowing her friend, who had a holiday house nearby, to pipe water from our well for her own use. When this lady died 18 years ago, her house was sold and the water rights to our well were written into the new owner’s deeds, with an annual charge of €6.35. On becoming aware of this situation, we approached our solicitor who informed us that, as the legal agreement states, the water rights are part of the original house sale and are for perpetuity.

Assuming that the above information is correct, we were wondering if there is any course of action open to us at this stage? Failing that, could we look for a more realistic annual payment from the current owners of the holiday house? Any advice would be appreciated.

Patrick O’Connor writes: In the absence of sight of the conditions and terms of the “legal agreement” it is difficult to give any concrete advice in relation to the questions raised.

In the first instance you should obtain from your solicitor a copy of your own title documents together with a copy of all agreements that affect the title particularly the one in relation to the water sourced by the neighbour from what is now your well. This agreement may be a grant of wayleave, easement or simply a licence. It is essential to find out what exactly the agreement is, what it says, and the terms of it.

If agreement can be reached with the neighbour who is sourcing the water from the well on your property to have it released or have an increase in the annual charge made therefore that process should be followed.

As the property is in a “rural area” it may be that house and properties are serviced by a group water scheme? If there is such a supplier of water in the area it might be possible to encourage the neighbour to join the scheme even at a cost which might in the long run suit yourself?

The property that you inherited seems to be subject to a “burden” which can only be removed by either (a) consent of the person who has the benefit of it, or (b) the termination of the agreement if that is permitted under the terms of the arrangement entered into by the person who gave you the property.

Your solicitor will advise on the nature of the agreement, the effect that it has on your and the neighbour’s property. It would be best to try to resolve your issues with the neighbour amicably.

  • Patrick O’Connor, is a solicitor with P O’Connor & Son Solicitors
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