The rules for properties that have access to water resources was amended in 2009. Prior to these changes, if a river ran past your property, you had an unfettered right to use the water. This meant that many owners and occupants were misusing the water and the farms downstream often missed out on the good stuff.
No property owner can use the water in a river without a licence. A licence can be for the use of the waterway (for example, to create a boat ramp) or it may give a right to use a specific amount of water per annum.
These licences have their own certificate of title and title reference (WAL). In some instances, many properties might have access to the same WAL.
The WAL is noted on the certificate of title of the property and if you are selling a property with a WAL, it must also be transferred. If it isn’t, the new owner has no right to use the waterway or extract the water.
Because a single WAL may be attached to many properties, you need to identify who holds the certificate of title for the WAL. This might be with a bank, one of the owners, etc.
We recently had a sale where the WAL was transferred to another party, leaving our client with a right on another lot. The parties were related and thankfully, the matter was resolved.
This potential problem exists not only in the country, but on the fringes of Sydney too.
If there is a river on or connected to the property, check the title to ensure what you are selling. The purchaser will not love you if you forget their water !
This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.
To get in touch with Bailey, please email firstname.lastname@example.org