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| Harjot Atwal |
Though I have been practising real estate law for over eight years now, I have never personally closed a transaction or had a file involving a rural property. Thus, I found the issue of shared wells intriguing. Perhaps it occurred to me that I take it for granted that I just turn the tap and water flows out? What if accessing water was more difficult? Further still, if I was not using a private well but rather a well shared amongst my neighbours as a water supply source, what additional complexities would arise?
This is the first in a series of articles about various ways in which my knowledge of residential real estate has been enriched by my pursuit of a realtor licence with the Real Estate Council of Ontario (RECO). The series addresses shared wells and rural real estate, condominiums and Kitec plumbing, asbestos and urea formaldehyde foam insulation (UFFI), disclosure of septic systems, and lot sizes and damages. A further series will be written when I complete the commercial real estate part of the RECO course currently offered by Humber College.
Well (pun intended), RECO discusses the following types of wells:
- Dug wells: Usually, no more than 10 feet deep; made by digging down to the water table with a hand shovel or backhoe; found mostly in older properties.
- Drilled wells: Typically, 100 to 500 feet deep; made using cable tools or rotary drilling machines and depth depends on the location of the underground water source.
- Bored wells: Created using a large diameter bore or drill; deeper than dug wells, tend to be shallow, and yet exposed to a larger area of the soil that contains groundwater.
- Point (driven) wells: Can be 30 to 50 feet deep; simplest type of well; made using a sharpened pipe driven into shallow water-bearing sand or gravel; economical and easy to construct.
The point being (will the puns never cease?) that I assume each of these types of wells could be a well shared amongst neighbours. You may need one because you do not have access to municipal water lines or you want to avoid the cost of high water bills. Of course, if you have a family, you will want the shared well to have adequate capacity to supply your entire household.
Problems also abound. Will your mortgage company provide you with financing without access to a water supply? No. Who is responsible for maintenance and repairs? You are! (imagining neighbours bickering with one another). Same response could possibly be shouted when one of those neighbours notices or becomes aware of some kind of contamination issue (e.g. bacteria, heavy metals).
So, the RECO course led me to look into the idea of a Shared Well Agreement. A few salient points to consider before looking at the case of Muir v. Drozdoski, [2003] O.J. No. 5153.
How will the shared well agreement be terminated? Do all the owners have to agree? What if there are four or more owners? Can anyone terminate unilaterally? What kind of payments for ongoing maintenance, repair and operation of the shared well water distribution system are required for one to bow out?
How often do well inspections need to be carried out? The above-linked agreement mentions once every five years. I was under the impression from my RECO studies that it should be two to three times a year, though I may be mistaken. What if the well needs to be decommissioned? Who will be responsible for hiring the contractor? What about taking the initiative of sending a well record to the Ministry of the Environment, Conservation and Parks?
Usually, the person(s) who has the well installed on their land do the brunt of the administrative work. Should they be compensated for all of the additional pains they are taking? If you have what we need because you are using what I am giving you, to paraphrase and add to the above-noted quote, should I not receive an administrative fee for the extra effort expended?
What if we need to engage in water treatment? Possible options include: water softening, reverse osmosis, granulated activated carbon filtration, ultraviolet systems, iron deionizers, chlorine injector units, and desalinators. How will we decide which one is best? Do we just go by the expert’s opinion? Can we put it to a vote? What if I am one of the four neighbours who does not like the cost or another aspect of the water treatment, and insist we get a second opinion?
As I hope I made quite clear, I think the issue of shared water wells is both fascinating and has the potential to become quite complex. Now, I just wanted to briefly touch on Muir.
The case concerned neighbours unable to agree on how to deal with a shared well system. The initial application resulted in the appellants having an easement, by grant, for the use of the system located on the respondent’s property. It was further concluded that there was no easement to repair, maintain, upgrade or replace the shared well system.
The dispute escalated when the respondent threatened to shut off the shared well. When the appellants failed to take measures to install their own alternate water systems, the respondent indeed followed through.
The rest of the case dealt with additional evidence that would need to be provided to address issues with initial easement decision. But, all of the litigation could have been avoided if they had just reduced a shared well agreement into writing, come to a consensus on various issues, and had it signed, sealed and delivered to all of their respective benefit.
I’ll end this off with a quote as has been my habit of late. In the spirit of neighbourly love, as stated by Lucius Annaeus Seneca: “There is no delight in owning anything unshared.”
This is the first part of a five-part series.
Harjot Atwal is a real estate lawyer. In 2023, he opened up his own shop, Atwal Law Firm. For legal matters, you can reach him via email at harjot@atwallawfirm.ca. He is also a mortgage agent (level 1) with Pineapple Financial Inc. (FSRA #12830) and currently pursuing his realtor licence with RECO. His phone number is 647-967-6548, and you can also reach him on LinkedIn.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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