A steadily flowing stream or babbling brook might seem appealing and attractive at first glance, but it is important to understand the rights and responsibilities you will be taking on, either as a landowner or tenant.
Riparian rights are a non-statutory system of rights relating to property where there is a natural watercourse within or adjacent to its boundaries. Riparian owners are presumed to own the land under the water to the centre line of the watercourse, unless this is rebutted by evidence to the contrary in the title deeds. Riparian owners are presumed to be joint owners of watercourses together with the landowner on the other side.
The Rights Of Riparian Landowners
Whether it be a stream, river, ditch, brook or spring, riparian owners have the benefit of rights in relation to that watercourse. These include:
- The right to use the water for certain purposes connected to the land such as fishing or mooring.
- The right to receive the flow of water in its natural state without diminution, alteration or obstruction.
- The right to receive water free from pollution.
- The right to protect their property from erosion and flooding providing such measures are approved by the risk management authority.
With Rights Come Responsibilities
The flow of natural water creates interactions between the mutual rights and liabilities of all the riparian owners along the length of its course. Riparian landowners have common law duties to other landowners, the community and the environment. The common law duties include:
Letting water flow through their land without any obstruction, pollution or diversion which affects the rights of others.
Keeping the banks clear of anything that could cause obstruction and increase flood risk along the watercourse.
Maintaining the watercourse beds as well as any trees and shrubs growing and clearing any litter and animal carcasses from the channel and banks.
Riparian landowners are also subject to statutory duties. These include:
- To notify the regulators and risk management authority if you would like to build or alter a structure that acts as an obstruction to a watercourse.
- To help to protect water quality.
- To control invasive species such as Japanese knotweed.
How Do These Responsibilities Affect Landowners?
The responsibilities of a riparian landowner cannot only prevent or restrict the future desired development of land but can also require certain works or maintenance in the upkeep of a watercourse to avoid potential common law or statutory liabilities, which could result in legal action.
There are number of considerations for riparian landowners, such as obtaining insurance to cover instances of flood defence breach or the need for abstraction licenses if water is to be taken from the watercourse. A landowner can not just fill in a ditch on the property as this could fulfil an important role in preventing local flooding.
How Do The Rights And Responsibilities Affect Tenants?
A landlord will want to ensure that when granting a lease of land abutting a watercourse the responsibility for damage caused by the tenant resulting in a claim is passed to the tenant. The tenant will want to ensure the lease grants them the rights the landlord enjoys which do not automatically pass to the tenant. A tenant, by virtue of the lease, should aim to ensure that the landlord would enforce rights against neighbouring owners that interfere with the ability of the tenant to enjoy those rights.
Property Law is a complex area of law and at Goughs our dedicated lawyers will handle every aspect of your move, identifying and overcoming such issues so you don’t have to.