Navigating property rights can be complex, but understanding drainage easements is crucial for homeowners and municipalities alike. A drainage easement is a legal provision attached to a property's deed, granting a third party—often a local government entity—the right to use a specific portion of the land for managing water drainage.
According to the National Association of Flood & Stormwater Management Agencies (NAFSMA), effective stormwater management, facilitated by such easements, is essential for reducing flood risks, which affect millions of Americans annually. The easement typically includes infrastructure like culverts or drains and ensures unobstructed water flow across the land.
As reported by the United States Environmental Protection Agency (EPA), proper easement maintenance is key to preventing property damage and environmental hazards. It's important to note that once established, a drainage easement remains with the property deed through successive ownerships unless altered under exceptional circumstances.
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.
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.
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.