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Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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A private inter allotment drainage system has deteriorated

Customer Question

A private inter allotment drainage system has deteriorated due to old age. The deterioration is on our property and is causing damage to the house. The water damaging our house is largely from the properties above us who benefit from the easement. There seems to be no provision in the terms of the easement (1873) about maintenance. Do we have any prospect of getting those who benefit from the easement to share cost of repairs to save our house from further damage?
JA: The Lawyer will need to help you with this. Have you consulted a lawyer yet?
Customer: No yet
JA: Please tell me everything you can about this issue so the Lawyer can help you best. Is there anything else the Lawyer should be aware of?
Customer: There are 8 benefiting properties above us. The Council is aware of the drainage pipe and have provided me with a plan of it. Can't think of any more detail that is relevant.
JA: OK. Got it. Last thing - JustAnswer charges a fee (generally around $18) to post your type of question (you only pay if satisfied). While you're filling out that form, I'll tell the Lawyer about your situation and then connect you two.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

Who owns the drainage system and has the right to the easement?

Customer: replied 1 year ago.
Hi Leon, As I said the drainage system is privately owned. The right to the easement was given to properties above my property. In 1873 this was just one property. But after many sub divisions there are now 8 properties with access.
Expert:  Leon replied 1 year ago.

Do you know who that private owner is?

Customer: replied 1 year ago.
It is owned by the land holders whose properties it runs through. There are some that are now blocks of units, some are private houses.
Customer: replied 1 year ago.
The point is that it is not owned or controlled by the local council or Sydney Water or any other government authority.
Expert:  Leon replied 1 year ago.

Good Morning

The party that needs the system is the one that own it and liable for maintenance. You are burdened by it.

Your responsibility is to maintain the easement and not build on it.

But the drainage is their responsibility.

If you are the owners of the drainage system you are liable to fix it.

Customer: replied 1 year ago.
Thanks Leon,The part of the easement for the drainage system on our property runs closely beside our house and is beneath a concrete path that runs along side the house. The house and path were built in the 1930s. The easement was created in 1873. The Council must have approved the construction of the house and side path in the 1930s. As the drainage pipe is buried at this point it will be more expensive to fix. Does this give the upstream beneficiaries of the easement any case to pay less than equal shares for the repair? All their properties were built after ours was built in 1930s.ThanksTom
Expert:  Leon replied 1 year ago.

Good Afternoon

The parties that benefit form the pipe are the ones liable to pay for its repair. It is there for them not the party that owns the land on which it is on.

If all parties the owner of the land and the others all benefit then they all are liable to pay for the the pipe to be fixed.

So if it only goes through your land and it is there for the other above you to use and it ti there for their benefit you can have them pay for it. It is there for them.

I hope this makes sense? They are the owners of the pipe.