The resolution of disputes involving water runoff from neighbor’s property often depends on whether the runoff is natural or manmade. Generally speaking, a person cannot be liable for damage to a neighbor caused by naturally occurring land and drainage conditions. So when a person’s land is located down hill from a neighbor’s property, and water flows naturally from the neighbor’s property across their own, the downhill property owner cannot complain. They would have to take measures themselves on their own property to deal with any unwanted drainage problem.
On the other hand, if a neighbor’s careless act results in the artificial diversion of water to a person’s property, the person may recover damages from the neighbor for the water damage caused by their neighbor’s careless act. So, for example, if a neighbor were to build a large water tank on their property in a negligent manner and it burst open, causing a damaging flood on a person’s property, the neighbor would have to pay to repair any resulting damage.
Or, if the neighbor were to add landscaping features or otherwise alter their property, so that there is more water runoff from the neighbor’s property onto a person’s land than is natural, the person may be able to recover damages from the neighbor. Otherwise, the right for water to drain naturally from one person’s property to another has been called “a natural right” by courts.
What Types of Legal Theories Are Involved in Water Damage Disputes?
Water damage disputes are governed by state law and the law in each state may be unique. So a person would want to consult the applicable law in their state. In most states, however, there are three laws that usually apply to water damage situations:
- The Reasonable Use Rule: In a majority of states, under this rule, if a person changes the natural pattern of water drainage on their land, they may be liable for the resulting damage to their neighbor’s adjacent property, but only if it is shown that the alteration was unreasonable or unnecessary. The same rule applies to the use of underground water;
- The Common Enemy Rule: According to this rule, all rainwater and other water from natural sources is the “common enemy” of landowners; andowners can take whatever steps they wish to prevent and protect their land from surface and runoff water without concern for any effect it might have on neighboring properties. The gist of this rule is that every property owner is responsible only for themselves and their own property.
- The rule has been modified in some states. For example, in California, the California Supreme Court modified the rule when it held that the reasonableness of conduct should be determined under the law of negligence. Per the law of negligence, every person has a duty to use reasonable care to avoid injury to another, including adjacent property owners.
- If a person’s failure to exercise “reasonable care” in altering an uphill property causes damage to a downhill owner’s property, it may create liability for the upper owner. The downhill owner is still responsible to take “reasonable precautions” to avoid damage to their own property.The “common enemy rule” may have been updated in a similar way in other states as well.
- The Civil Law Rule: This rule imposes liability on any landowner who changes their land in a way that alters the natural flow of water across the land of another. Therefore, per the “Civil Law Rule”, if a person alters their property, and this alters the flow of water across an adjacent property, which, in turn, causes damage to the adjacent property, the owner of the property that is negatively affected by the change may have a case for damages against their neighbor.
Then, there is the law of negligence, mentioned above, which imposes on every person a requirement to use care in all of their actions so as not to cause harm to others. If a person’s property has been damaged because of the carelessness or negligence of their neighbor in connection with water-related activities, a person may be able to sue for compensation for their losses. It may also be possible to get a court order directing a person’s neighbor to stop doing the activity that has caused water damage to your property.
The law of negligence may be of help in situations in which damage is the result of simple accidents or forgetfulness. So, the damage might be caused by leaking or broken water hoses, leaking sprinkler systems, burst water pipes, and even clogged gutters or drainage utilities.
What Types of Damages Can Be Recovered?
Successfully suing neighbors for property damage caused by water should result in an award of damages. An award of damages in a successful case for water damage would compensate a person for all of the damage they suffered as a result of the water event.
As part of their case, a person would have to prove the extent of the damage they suffered and what it would cost to repair or restore their property to the condition it was in prior to the damaging event. Proving the nature and amount of damages is a critical part of a person’s case. Of course, the owner of the damaged property would have a duty to mitigate the damage. This duty is present in all cases in which a person has been injured or their property damaged by the negligence of another person. It is a duty to take steps to minimize the damage to the extent possible.
If the negligence of a neighbor causes water damage to a person’s property, the person can sue the neighbor for damages for the harm to their property caused by the water event. The person could recover money damages to compensate for the following items:
- Cost of Repair or Replacement: The cost of repairing or replacing the damaged property is the basic measure of damages;
- Loss of Use: If the person whose property is damaged loses the use of it, they can be compensated for this. So, for example, the cost of staying in a hotel until it is repaired, if the person’s house is uninhabitable, can be recovered. Or, if the property was used for commercial purposes and this use was interrupted to the expense of the owner, the damage award would have to compensate for the loss of the commercial use;
- Medical expenses: An award of damages should include the cost of treatment for any physical injuries and emotional distress that may have resulted from the incident;
- Lost Wages or Salary: If the water incident caused the injured person to lose wages or salary, then compensation for lost wages or salary would be part of the damage award;
- Punitive damages: An award of punitive damages, an amount of money that is exacted to punish the person who is sued, is not common. However, if the neighbor acted with more than simple negligence and it can be shown that they knew the damage their act would cause, punitive damages might be appropriate.
Winning an award of damages would depend on the person showing that the neighbor, who had a duty of care not to cause damage to the person’s property, breached that duty by negligently making alterations to their property, which caused damage to the person’s adjacent property. The person would have to offer proof of the damage done, the costs incurred in repairing the damage and the cost of treating any resulting personal injury. This would be a standard lawsuit for negligence.
Do I Need a Lawyer If I Have Water Damage Disputes with My Neighbor?
Whether you have suffered water damage due to the actions of a neighbor or are accused of causing water damage, a real estate lawyer can help you. Sorting out causes can become complicated and probably require the services of an experienced lawyer.
A lawyer will know the specific laws in your state and can potentially help you recover for your losses or defend you from liability. If the standard of “reasonableness” applies to some action taken by you or a neighbor, proving the reasonableness or unreasonableness of an action can get tricky. The services of an expert could become necessary. An experienced real estate lawyer is going to have the skills needed to identify and work effectively with an expert witness.
Or, if a dispute cannot be resolved amicably through negotiation and it becomes necessary to sue, of course, a lawyer can represent you in court. You are most likely to get the best possible outcome if you have an experienced real estate lawyer.