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A private inter allotment drainage system has deteriorated…

Customer Question
A private inter allotment...

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?

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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.

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Submitted: 2 years ago.Category: Australia Law
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Answered in 40 minutes by:
2/12/2016
Solicitor: Leon, Solicitor replied 2 years ago
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,961
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Verified

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?

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Customer reply replied 2 years 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.
Solicitor: Leon, Solicitor replied 2 years ago

Do you know who that private owner is?

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Customer reply replied 2 years 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 reply replied 2 years ago
The point is that it is not owned or controlled by the local council or Sydney Water or any other government authority.
Solicitor: Leon, Solicitor replied 2 years 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.

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Customer reply replied 2 years 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
Solicitor: Leon, Solicitor replied 2 years 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.

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