What is a Drainage Easement?

Mary McMahon
Mary McMahon
Mary McMahon
Mary McMahon
A drainage easement is a document that is usually attached to a property deed that gives access to part of the property to a third party, usually a municipality, for the purpose of maintaining drainage.
A drainage easement is a document that is usually attached to a property deed that gives access to part of the property to a third party, usually a municipality, for the purpose of maintaining drainage.

A drainage easement is an attachment to a property deed which states that access to part of the property is given to a third party, usually a municipality, for the purpose of maintaining drainage. The drainage easement may include a culvert or drain which feeds into a drainage system or the easement may simply state that runoff needs to be allowed to flow freely over an area of the property. The easement cannot be lifted from the deed unless there are special circumstances, and it will be associated with the deed even when it is transferred or sold.

A property owner may risk flooding and other problems if the drainage system does not work properly.
A property owner may risk flooding and other problems if the drainage system does not work properly.

Easements in general are used to address cases in which someone other than the property owner needs the right to access the property, and the easement comes with the right to use, but not full ownership rights. Another common example of an easement is a road easement, in which part of a property is used for a shared or even public road and an easement protects the rights of others to use that road. Easements are drafted by lawyers who work with the property owner and the parties who need access to ensure that the document is accurate and fair.

Property owners cannot regrade the soil or build structures on or near a drainage easement because it could impede the free flow of water over the property.
Property owners cannot regrade the soil or build structures on or near a drainage easement because it could impede the free flow of water over the property.

In the case of a drainage easement, the easement benefits the property owner as much as it benefits anyone else. In order for a municipal drainage system to work effectively, the municipality needs to ensure that drainage easements are in place so that city workers can access private property in order to maintain and repair drainage areas. For example, if a culvert runs through a property, the drainage easement allows the city to replace it if it is damaged.

Drainage easements may include a drain to feed into a drainage system.
Drainage easements may include a drain to feed into a drainage system.

If the drainage system does not work properly, the property owner can be at risk of flooding and other problems. In exchange for allowing the municipality to access the property, the property owner gets to enjoy a property which drains freely, and knows that neighbors are also obliged to maintain their drainage easements to ensure that water intrusion will not occur along the property line.

When a drainage easement is in place, there are restrictions on how the easement area can be used. People usually cannot regrade the soil or build structures because this could impede the free flow of water over the property. If there is a culvert or pipe, trees cannot be planted over it, because their roots could block it, and people are expected to keep gratings clear so that the water can drain properly. If people would like to change the terms of the easement, they must reach an agreement with the agency which holds the easement.

Who Is Responsible for Maintaining a Drainage Easement?

The property owner is usually responsible for maintenance on a drain easement. Keeping drain grates free of debris is just the start. Specific maintenance tasks can vary, but these often include cutting grass, clearing away leaves, removing fallen tree limbs and cutting away other vegetation that could clog up the grates or otherwise block access.

Soil Topography and Drainage Easements

Besides basic maintenance tasks, some municipalities have requirements for the soil around a drainage easement. If work being performed nearby would impact that soil, erosion control measures may be mandated. The goal is to limit the amount of sediment or erosion material from ending up inside the easement portion. Homeowners may also be asked to keep the existing topography. This is key because topography can impact the ability of water to flow freely and drain properly.

Drainage Easement Restrictions

Each jurisdiction sets down its own rules on drainage easement restrictions. With that in mind, it’s worth reviewing a few common types of restrictions that appear in most municipal codes. Nearly all prohibit modifications inside an easement area that would impede the free flow of water. These can include some common types of property improvements:

  • Installing swimming pools
  • Adding rooms or garages
  • Building sheds or gazebos
  • Constructing fences

Gardens, Landscaping and Hardscaping

Drainage easements can also impact a homeowner’s landscaping plans. Restrictions on construction and modifications inside an easement area also extend to planting trees or changing the slope of the land. Hardscaping may also be out of the question — paving stones, bricks, gravel, retaining walls, fountains, waterfalls, backyard ponds, garden bridges, and similar upgrades can also affect water flow and drainage.

Playground Equipment and Temporary Structures

Homeowners should also take care when it comes to home playground equipment. Swing sets, playsets, and slides need ground anchors to keep them sturdily in place. Without these anchors, the equipment could shift, rock or topple and cause serious injuries. Unfortunately, these can also cause you to run afoul of easement restrictions. Most municipalities’ rules address temporary yard additions that require serious time and effort to move if they limit or impede drainage.

Drainage Easement Example

Drainage easements can vary in size and location, depending on the property. Easement areas are generally near the perimeter — an edge of your backyard, for instance. They can contain drain grates and underground pipes or be simple constructions with a culvert and carefully sloped land.

An easement might take up just a small area of your property, but it all depends on what your municipality determines that it needs. Minimum easement widths of 30 feet are common, but some contracts may allow temporary work easements on either side of a permanent easement area.

Drainage Easement Contract Elements

A drainage easement agreement is basically a contract between a landowner and the third party requesting the easement. The landowner is usually referred to as the grantor, while the third party is the grantee. These contracts can be simple or complex, but they usually consist of a few important components.

Title, Preamble and Parties

The first part of a drainage easement contract is pretty straightforward. The title is usually something like “Drainage Easement Agreement.” Next comes the preamble, which includes the grantors' and grantee’s names, the address of the property, and the date of execution.

Language can vary from contract to contract, but it has a general format. You may see something like this: “This agreement is made this 12th day of August, 2018, by and between the City of Columbus, Ohio, a municipal corporation, and Tyrone Johnson, Owner, 1234 Any Street, Columbus, Ohio, 43213.”

Recitals

An easement contract may include recitals. This section is optional, but it’s a useful element that can explain why the easement is needed. It could say something like, “The Grantors acknowledge that it is in their best interest to grant an easement for drainage purposes to the City of Columbus.”

Agreement

The agreement portion of an easement contract details the type of easement being granted, plus the rights that come with it. This usually includes access to the easement area for maintenance, construction, repairs, and modifications. Some contracts also mention the grantor’s responsibilities, namely not blocking access and keeping the area clean.

Keep in mind that many drainage easement agreements are perpetual. In other words, there’s no time limit on the property access granted to the third party. These easements also “run with the land,” meaning that they’re attached to the property deed itself. When ownership transfers, so does the easement contract.

Mary McMahon
Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a MyLawQuestions researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

Mary McMahon
Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a MyLawQuestions researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

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Discussion Comments

anon1006767

My township storm drain empties into my yard causing flooding, and they have given me the runaround for years. How can I get help? My house has been flooded several times.

anon970384

The issues below should be redressed with the help of an Attorney.

anon356437

I have a problem my yard. I have the municipality's drain and it always blocks and floods my yard. What can I do?

anon341322

We have just moved into our property and have now been informed by our homeowners that there is a vote to allow a company to run a sewage easement next to our property line! They keep offering our board more money and the fear is that they will accept and we are stuck then with all the mess, etc. this will bring. Any advice on where we stand with this? We have only been here a week and now just floored by this news.

anon330238

I have a drainage easement in my backyard. There is a culvert that stops in my backyard 25' from the rear of my property line, leaving a ditch (10' wide by about 6' deep) running through my property. My question is can I extend the culvert and fill over it, so I can get the maximum space out of my lawn?

anon313746

My next door neigbour has had a drive put in and took his garden out so there was water running out of his drive down the pavement and making it like a river.

We live on a hill, so it runs down past our drive and further down the pavement. The council has given him one month to put drainage in, but now we have noticed that he has put a hole in the wall between our house and his to run the water onto our drive. Our drive is becoming damaged due to this. Is there anything we can do?

anon298985

We have a problem regarding a neighbor who has knocked holes in a boundary wall which we paid for, to allow water to flow from his property into ours. We have installed a drainage trench and pump system to remove storm water from our property into the street.

He has done nothing other than to knock the holes in the wall. We are the last house in the street. Does this mean that we would be responsible for the storm water from all the houses "up stream" being discharged into our property?

anon293809

I built a retaining wall which doesn't need a consent and now must drain from behind said wall. Can I force the neighbor to allow me to use his sump or must I put in my own, which probably would be near impossible?

BadJohnson

Drainage easements are definitely a necessity to neighborhoods and communities, but when buying property with such an easement you should be very clear on just what the drainage easement restrictions on the property are. A guy in my neighborhood can't use over half of his yard because the city drains water onto it in the spring, forming a pond. He can't fill the area or build anything on it. When he bought the property he thought that drainage easement just meant that they might want to run a culvert through, not take half of his yard for public use. So be sure you know what you're getting into before you get into it.

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    • A drainage easement is a document that is usually attached to a property deed that gives access to part of the property to a third party, usually a municipality, for the purpose of maintaining drainage.
      By: lnzyx
      A drainage easement is a document that is usually attached to a property deed that gives access to part of the property to a third party, usually a municipality, for the purpose of maintaining drainage.
    • A property owner may risk flooding and other problems if the drainage system does not work properly.
      By: Robert Harrak
      A property owner may risk flooding and other problems if the drainage system does not work properly.
    • Property owners cannot regrade the soil or build structures on or near a drainage easement because it could impede the free flow of water over the property.
      By: david hughes
      Property owners cannot regrade the soil or build structures on or near a drainage easement because it could impede the free flow of water over the property.
    • Drainage easements may include a drain to feed into a drainage system.
      By: Aaron Kohr
      Drainage easements may include a drain to feed into a drainage system.