What is a Shared Well and why do I need a Shared Well Agreement?

Many properties in southeastern Manitoba have a unique feature that distinguishes them from properties in other parts of the province – a shared well. If you are new to this area, you may not be familiar with shared wells and even if you are familiar with them, there are many important legal requirements with shared wells, that you may not be aware of.

What is a Shared Well?

A shared well is a well that is located on one property that supplies water to the property the well is located on, as well as a number of other properties. Typically, all parties who utilize the well will equally share the costs of maintenance, repairs and electricity costs (if required). Each owner is then usually responsible for their own individual water lines once it reaches their property.

Some wells contain a submersible pump, which is generally placed at the bottom of the well in order to push the water up to the home/building. Electricity is required to power the submersible pump, which is generally provided by one of the properties. The property which supplies the hydro may or may not be the same property which has the well, depending on when the house/building was built.

Why do I need a Shared Well Agreement?

Usually we turn on our taps, water comes out and we go about our daily lives without thinking too much about the legalities associated with the water derived from a shared well. We don’t always think about legal requirements and its repercussions until an issue or conflict arises. Having a formalized Shared Well Agreement that clearly sets out the rights and responsibilities of each party who utilizes the well may help to eliminate potential conflicts.

First and foremost, without a formalized Shared Well Agreement, you may not have a legal right to obtain water from the well. We use water in so many aspects of our lives and it has a very important purpose, so at the most basic level, Shared Well Agreements give you a legal right to obtain this water.

One of the other important functions of Shared Well Agreements is it sets out which parties are responsible for the costs of general maintenance and repairs and costs for repair in the event that one party acts negligently.

There are also certain requirements as to the number of parties that are able to utilize the shared well. In addition, depending on the number of properties the well provides water to and the type of property (residential or commercial), there may also be requirements to perform certain water tests.

In accordance with The Drinking Water Safety Act and its Regulations, there are water testing requirements for wells that are deemed to be a “public water supplier” and “semi-public water supplier” under the legislation.

The current policy of the Office of Drinking Water is that if a well services 4 or less privately owned residential properties, the well does not fall under the water testing requirements for a “semi-public water supplier.” However, unless a well has otherwise been designated by the director, a well which provides water to a commercial property does fall under the definition of a “semi-public water supplier” and therefore there are water testing requirements for wells which service a commercial property. A “public water supplier” is a water system that has 15 or more service connections, or as designated by the director.

When preparing Shared Well Agreements, we look at all these different pieces and draft an agreement that is well suited to that particular shared well. We also recommend that these agreements be registered at The Property Registry to ensure that the terms of the agreement are known to all owners. It also ensures that these rights are transferred to subsequent owners of the properties. Properties are bought and sold on a continuous basis and it is important that as new owners obtain possession of a property that they are aware of all of the intricacies of the shared well. Having a formally registered Shared Well Agreement allows new owners (and their lawyer) to review the agreement so as they take possession of their new property, they know where the well is located, if there is a submersible pump and which party they need to pay for their share of the electricity costs (if required), as well as all their other rights and responsibilities surrounding the shared well.

Takeaway

If you utilize a shared well (whether the well is located on your property or the property of your neighbour), you should ensure that a formalized Shared Well Agreement is prepared and registered at The Property Registry. Having this dealt with when all the neighbours are amicable can help eliminate disagreements and save thousands of dollars which may result from litigation or having a new well drilled (provided that government authorities allow this).

If you are looking to purchase a property, one of the inquiries you will want to make is determining whether the property receives its water from a shared well. If it does, we recommend you contact our office prior to entering into the Offer to Purchase. If this is not possible, you can also make the Offer to Purchase subject to lawyers’ approval and advise us that there is a shared well for the property. Lending institutions such as banks and credit unions may also require a registered Shared Well Agreement as a condition of financing.

We can conduct a title search on the property and see if there is already a registered Shared Well Agreement on title. This can either be reviewed by yourself or you can hire us to review it for you.  You will also want to ensure that the Shared Well Agreement registered on title is accurate. There may be a scenario where an agreement is prepared between two houses, but later a third house connects to the well as well, but this has not been properly addressed in a formalized agreement. You will want to ensure that a new agreement is then prepared between all three houses. Sometimes a developer may advise the lawyer that the well and the property supplying hydro is the same property. This may not end up being the case if for example House A was supposed to supply the hydro, but there are delays so then House B is built first and therefore House B actually supplies the hydro, even though the registered Shared Well Agreement states House A supplies the hydro. This can create confusion and conflicts for all parties that we want to avoid.

Often, once the Offer to Purchase is entered into, it is too late to address these issues and problems can arise. Purchasing a home is a large investment and you therefore want to ensure that your property has an accurate Shared Well Agreement registered at The Property Registry.