Water Damage: You’re Neighbour’s Fault Or Yours?
Property damages such as flooded basements, collapsing retaining walls, or soggy gardens always cause conflicts between neighbors. As a result - stress and losing cash. But the legal issues can be as muddy as the mess in your backyard.
Surface Water Runoff and Flooding
As a rule, a neighbor is not responsible for harm caused by the natural conditions of land. It's not legally your neighbor's fault, if the land lies in such a way that a particular amount of water is dumped onto your backyard every year from rain running off your next-door neighbor's property, . However what if your neighbor landscapes his property so that the amount of water running onto your yard doubles every year? Perhaps your neighbor can say that the change is still caused by the naturally occurring rain, not his landscaping. But you would most likely prefer to take your neighbor's action into consideration. It faces about that three different rules of liability govern situations like this.
The prudence rule. Usually when one neighbor alters the land and damage occurs to another, the neighbor is responsible for the damage if the alteration was "unreasonable." If you sue a neighbor over damage you've suffered, judges will want proof that the neighbor did something unreasonable that altered the natural condition and caused your harm.
What about prudence?
What is prudence or reasonableness is decided by the courts on a case-by-case basis. In some conditions, courts have found gutters and downspouts that send rainwater onto a neighbor's property to be "unreasonable." To decide if something is reasonable, a court may look at the following factors:
- the nature and importance of any improvements that were made by the culvert
- whether or not the damage was reasonably foreseeable by the ones who made the changes, and
- the extent of damage compared to the value of any improvements.
The "common enemy" rule: Lower landowners beware. Few decades ago, many courts treated excessive rainwater as a "common enemy," damaging property at random. According to this theory, you were expected to take measures to protect your own property from water coursing across the land. You were expected to protect yourself from the extra water, even if one neighbor who lived on higher ground diverted water to prevent flooding and deposited it on you.
Gratefully for lower landowners, the handful of states that still follow the common enemy rule have modified it. It means that a low allows a property owner to divert vagrant surface water only if the work is not unusual or extraordinary and if the property owner uses reasonable care to avoid damaging adjoining property.
Carelessness is a reason
You can sue for compensation for your losses and also ask the court to order the neighbor to stop the action, if your neighbor acts unreasonably or carelessly with water on his own property in a way that causes water damage to your property,
Quite spread culprits of this type of water damage include garden hoses or sprinklers left running too long and water pipes that get clogged, get old, leak, crack, or freeze. Owners take a responsibility for their pipes and for damage they may cause, even if the pipe just wears out or freezes in cold weather. Additionally tree roots, including roots from neighboring property, can damage pipes. Tree owners may be responsible for damage caused to another's property by their tree's branches or roots, just as property owners are responsible for damage caused by their broken pipes.
What the Neighbor at Fault Must Pay For
In case a neighbor is legally responsible for water damage you suffer, you may be entitled to any or all of the following:
- compensation for cost of repairs and replacements
- compensation for expenses such as having to stay at a motel
- reimbursement for medical expenses
- compensation for mental distress, if you have suffered an underlying physical injury
- punitive damages, if a neighbor acted maliciously.
In addition judges often order problems to be fixed if fixing them would be easy and inexpensive. Replacing a downspout, clearing away debris, or cleaning out a drain creates very little burden on a property owner. Judges are less likely to order someone to remove a retaining wall, landscape property, or redo a culvert.
Meanwhile, you may need flood insurance, even if your neighbor's action caused the problem, when the damage comes from outside rising water. If the problem was caused at least in part by a neighbor, your neighbor's company may well pay you directly. Likewise the neighbor's insurance company might tell your neighbor to correct the problem or risk cancellation of the insurance policy.