Water damage in its most basic definition is a term given to damages done by water on a property be it land or a house. Most dilemmas connected with such incidences may stem from natural calamities like a storm which brings in overflowing surface water, and from man-made activities like landscaping that is intentionally or unintentionally constructed in order to divert the running excess water to another place. While both sources of water damage bring about considerable anxiety to a landowner whose property is destroyed, man made activities are the ones which often gives rise to disagreements between neighbors.
Legal Disputes among neighbors over water runoffs or flooding usually happens when water ensues to damage property like the collapsing of a retaining wall, having a flooded basement, and a very soggy garden as a result of leaks or bursts of water that comes from a defective water pipe, blocked drainage or a frozen line of water.
As a rule, neighbors cannot be considered liable if the damaged is caused by natural conditions of the land. If the topography or terrain of land lies in a manner where water can accumulate in the backyard annually due to runoffs from a neighbor’s property, legally it is not the fault of the resident owner from where the runoff comes from. There might be a case where your neighbor does landscaping around his or her property, and this action results to you having accumulated water runoffs in your backyard as well as house. You can consider taking said neighbor to court, but before doing so you need to understand that there are three various rules of liability which normally arises in situations like this. These rules are: the reasonableness rule, the “common enemy” rule and the “civil law” rule.
The Three Different Rules on Water Damage Disputes
The rule of reasonableness happens when a neighbor changes the land that eventually leads to the damage of another, wherein he or she is liable for any damage if the alteration has been “unreasonable.” Should you decide to sue your neighbor over the damages which your property sustained, the courts will require that you present tangible proofs or evidences that your neighbor has in fact done something unreasonable that has changed the natural condition of the land and gave rise to your predicament.
Before going any further, the reasonableness of your neighbor’s action will be decided by the courts on an individual case-to-case basis. In determining if an action is unreasonable, a court will look at the following aspects of the case:
1. The improvements’ nature and importance completed by the culvert;
2. If the damage was a foreseeable event by the individuals who did the changes, and;
3. The value of improvements done in comparison to the level of the damage.
The “common enemy” rule on the other hand subjects land owners who live or reside at a lower ground or level to protect themselves against any water damage that may likely occur. This includes but is not limited to protecting the property from a neighbor who lives on a higher ground that prevented his or her own flooding by finding a way to dump all the excess water on your property (with or without malice).
The common enemy regarded here is the excessive rain water that damages any property indiscriminately. Some states which still follow the “common enemy” rule is comprised of New York, Montana and others have amended it. Said states permit owners of properties to channel or redirect itinerant surface water in cases where the work is not considered unusual and the property owner has utilized reasonable care to prevent the damage of any adjoining property.
The “civil law” rule in comparison to the common enemy rule pertains more to landowners who have properties above ground or at higher levels. Theoretically, this is the opposite of the common enemy rule. The civil law rule holds an individual liable for harm or damage done if the natural flow of surface water has been altered to create such damage. While the common enemy rule necessitates landowners to secure and look out for their properties, the civil law rule considers landowners who have high ground properties liable for whichever damaging changes they have done that affects the natural channel of water runoffs.
Similar to the common enemy rule, the states no longer impose or uphold the civil law rule to the letter. Exceptions along with modifications have been done at present where the attitudes and bearings or both parties involved are scrutinized prior to the actual subjecting of the upper landowner to foot the entire bill. In the state of California, both parties are expected to act reasonably including the responsibility of the lower landowner to take steps in order to protect his or her property from flooding and other water damages brought about by too much rain water.
Water Damage Due to Carelessness
Water damages on your property as a result of carelessness by the owner of a neighboring property permits you to take said neighbor to court in order to demand compensation for damages incurred and to request the court to stop the neighbor’s deed. The most common type of activity for this kind of water damage involves sprinklers that are left running for quite a long period of time, water pipes that are clogged up, water lines that are old and leaking, has frozen or cracked. Owners must be made responsible for the damage they cause especially if the pipe gets old and rusty, or becomes frozen during the cold winter months. Tree roots can also damage pipes; hence owners of trees must be made responsible for the damage created by their trees or tree branches. Regular maintenance should be done in terms of pruning the tree branches.
Thus, when a neighbor is found to be legally at fault for any water damage on your property, you are entitled to some or all of the following:
- Compensation for replacement and repair costs.
- Compensation for the cost of expenses when you have to stay at a motel because the damage done requires that you stay out of your house temporarily until repairs can be done and completed.
- Medical expense reimbursement should you have suffered any health related problem due to the water damage on your property.
- Mental distress compensation if the damage resulted to you suffering from an primary physical injury.
- Penalizing damages, if there was spiteful intent by the neighbor.
Most Judges usually order that problems are resolved or fixed in the most convenient and inexpensive way. Replacements that will include cleaning and clearing of debris are preferred than having to order somebody to redo a culvert, remove an existing retaining wall or do a relandscaping of a property. Since these requires a lot of cash outlay and will take time to do, which is not just and appropriate in such circumstances for the person who is willing to make amends for the damages he or she has caused.
Insurances for Water Damage
With regards insurances, be sure to take the first important step of contacting your insurance company if water comes into your property from an adjoining source. Or when the problem of rising water gives way to flooding that is partially the fault of your neighbor. The insurance company will either pay you or demand reimbursement from whoever caused the problem; or your neighbor’s insurance company may pay you directly along with the action of informing your neighbor to right the problem or have his/her insurance policy cancelled.
If your house and backyard is prone to flooding it is often best to find ways on how to reduce the accumulation of water. If the water needs to be diverted down to a lower area, make sure that any form of changes you wished to install will not damage the other property below. If for example you want to improve your surroundings through landscaping it is essential to hire a professional worker who will not only do the landscaping well but will give appropriate advice on what to do so the project which you intend to improve your property may not be the cause of damaged of someone else. But if it so happens that your property is on a lower level, it is suggested that you find means and ways to safeguard your possessions from any unexpected flow and rise of water which may come above ground. Aside from this, it is likewise important that you do an internet research regarding your state’s laws on water so you will know what to do if in case you find yourself in such situation.
Remember that taking the legal step is your right in every sense of the word, but this step must be done as a last resort only, because court cases normally take time, effort and money. If you can settle your differences with your neighbor and reach an amicable settlement it will be better for both of you. If however you have tried all means and ways to get your neighbor to meet you halfway and he or she is still not giving you the time of day, then you have no choice but to take legal steps in order to ensure that a concrete action and result will happen.