What Can I Do About Water Drainage on My Property Caused by the Adjourning Property?

Water is one of nature's most destructive forces. Beyond the headlines of floods and hurricanes, there are everyday property issues due to water: a lawn sprinkler system left running around the clock; an above-ground pool with a leak; property grading that redirects rainwater.

Water damage due to a neighbor's actions -- or inactions -- may lead to considerable and costly issues for adjoining neighbors. For example, if your neighbor has altered their property in a way that causes excess water to run onto your land than might otherwise occur naturally, then you may have some recourse to recover for that damage.

Nature of Water Disputes

Water that comes into a home can cause a significant amount of damage, resulting in ceilings and floors collapsing and possibly the development of mold which can be expensive and difficult to eradicate. Additionally, the structure of a home can be compromised due to flooding, an overflow of water or a buildup of water. When a neighbor’s water leads to damage, serious disputes may arise.

Surface Water

In water disputes, it is often necessary to first determine the source of the water. Generally, neighbors are not held legally responsible for damage to a property that is caused by the natural runoff that occurs when rain or other precipitation meets the earth.

Diversion of Water

However, if the runoff is caused by alterations of a neighbor’s yard that causes more water to run down the land onto the neighbor’s property, legal recourse may be available. Some states have laws that prohibit individuals and businesses from diverting or impounding the natural flow of surface waters that damages another’s property due to overflow caused by the diverted water.

Reasonable Use Rule

Some states use the reasonableness approach to determine whether or not to hold a neighbor responsible for damage caused by water. States that follow this rule generally require an individual to prove that the neighbor took some type of affirmative action that caused a neighbor to sustain water damage, this alteration to the land was unreasonable and this action changed the natural flow of water onto the property. The fact finder may evaluate a number of different factors in order to determine whether the alteration was reasonable or not, including the relative importance of the alteration, whether the damage from the diverted water was reasonably foreseeable at the time the neighbor made the alteration and the difference between the value of the damage to the neighbor’s property than to the increased value of the diverted neighbor’s property.

Common Enemy Rule

Another rule that may apply in these situations is the common enemy rule, which requires each landowner to protect his or her own land from surface water. If this step is observed in the state, the landowner can generally take steps that they want to help themselves, such as building drainage ditches. If a neighbor’s diversion leads to more water, the landowner is supposed to take steps to protect his or her own land. Some states follow this rule but have adjusted it to not be as harsh to damaged properties and allows for questions regarding negligence.

Natural Flow Rule

The opposite of the common enemy rule is the Natural Flow Rule. This rule imposes liability on a landowner who changes his or her land in a manner that alters the natural flow of water onto the surface and across the land. States that follow this rule may have adjusted it. The adjusted rule may permit modifications to a person’s land so long as the modification is reasonable. However, there may be a higher duty imposed on landowners to take additional measures to protect his or her own land caused by damage and increased water.

Potential Remedies

Neighbors who have been adversely affected by a neighbor’s negligence may be able to pursue compensation for the damages that they have suffered. Potential damages include the cost to repair or replace property that is damaged, the cost of temporary lodging while the repairs are being made, medical bills related to the water damage and punitive damages. These damages can often be significant.

Equitable remedies may also be available. The court can order the neighbor to stop taking whatever action that is causing the water damage. It can also order the court to take certain action that will prevent the runoff or minimize it.

Legal Assistance

Landowners who have been adversely affected by the actions of neighbors may be able to pursue damages that they have sustained with the help of a lawyer. A lawyer can investigate the nature of the claims about the possible cause of the damage, the extent of the damage and potential remedies. He or she may also investigate whether there are any insurance policies in place that may help minimize the damages suffered by the property owner.

Provided by HG.org

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case.

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