Law Blog

A concerned client recently sought advice regarding the following scenario:

In Toowoomba during the 2011 floods, a creek swelled and lifted a large rainwater tank off the ground and over a fence before dropping it again as the flood waters receded.

The result being that the rainwater tank had been moved onto our client's land from his neighbour's property.

The very large tank was lodged in an awkward position and couldn't simply be returned to the neighbour's land so our client was curious as to what rights and/ or obligations he had in relation to the tank.

In particular, our client wanted to know the following:

• Was he responsible for paying for the return of the tank to his neighbour's land?
• Was he obliged to grant access to his land to his neighbour in order for him to recover the tank?
• If the tank was damaged during the return process who was liable for the damage?
• If the owner of the tank failed to collect the tank after a certain period of time, would the tank be deemed abandoned and thus become our client's property?

Unfortunately, as is usually the case with the law, there is no clear and concise answer to any of these questions.

However we were able to tell our client about an unusual principle of law known as involuntary bailment.

The opposite of this, 'voluntary bailment' or just 'bailment' is where property owners leave their property in the care of another person, such as a car with a mechanic, for a particular purpose. In these situations the bailee (the mechanic, for example) has a duty to care for the property for the owner (the bailor).

Involuntary bailment is where are relationship of bailor/ bailee arises against the will of both parties but certain duties eventuate nonetheless.

A perusal of the case law and commentary indicated to us that:

• The bailee (our client) did not have a duty of care to look after the rainwater tank however our client would be liable for recklessly damaging the rainwater tank or damaging it through his negligence... so we advised him not to remove the tank himself
• Due to the awkward and relatively inaccessible position of the tank, the bailee (our client) was not necessarily obliged to grant access to his land to the bailor (his neighbour/ the owner of the tank) however this would be the ethical thing to do as the tank's presence on our client's land was not his neighbour's fault or choice
• No doctrine of abandonment of property such as would be relevant for this situation seems to exist in the State of Queensland - so the rainwater tank would remain the property of our client's neighbour

We advised our client to seek a written agreement with his neighbour which would (amongst other things):

• Outline the procedure whereby the neighbour would be granted access to our client's land to remove the tank
• Ensure the cost of the tank's removal would be completely borne by the neighbour
• Indemnify our client against any damage caused to the rainwater tank whatsoever
• Indemnify our client against any damage caused to our client's land or attached property during the tank's removal

Both our client and his neighbour are now happy - one with a tank firmly back in place (bolted to a slab now) and one with a rainwater-tank-free paddock once more.

This was an interesting and complicated scenario but no doubt not as rare as we first thought given the widespread flooding seen in Queensland recently.

By Ben Hall

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