This article was originally published in the Union Leader and can be found here.
By: Bobbie Hantz | March 5, 2017
About a year ago, I wrote an article about the unintended consequences of making changes to your property without planning for water run-off and potential adverse impacts to neighboring property. Not only do such actions come with potential liability for damage claims, failing to plan for drainage issues can prevent or delay regulatory approvals and can damage the property you are trying to improve. Since then, I’ve been asked to follow up and address what to do when someone else dumps water on your property.
We all know water runs downhill. Over time it establishes its natural pathways from high to low. On open land, during a rain, water hits the ground uniformly, pools into rivulets and finds a course. Trees, plants, and the terrain direct and redirect the rain. During development – of a house, wall, driveway, or roadway, again the surface water will be collected, directed and diverted by the changes in terrain, changes in elevation and changes in surface – from permeable (where the water is able to soak into the ground) to impermeable where the water simply runs off. Water hitting roofs and directed into gutters can become a concentrated stream as can water hitting roads and directed into ditches, gulleys and culverts. More urban areas may have integrated storm water systems to handle run-off from adjacent properties. More rural areas often do not.
So, your neighbor wants to build a house, with a lovely patio, paved driveway and deck. Or a builder wants to subdivide and build several homes on a cul-de sac up the street. If it is a major project, there may be a planning board or zoning board hearing where off-site drainage could be addressed. Drainage can be evaluated and required to meet standards for various levels of storm activity. If it is a smaller project, which only requires a building permit or no permit approval, there may not be the same opportunity to address drainage issues in advance. But if you do get the chance, do speak up, and ask where the water is going to go.
Let’s assume, however, that development happens, and the next thing you know, when it rains, your back yard floods way more than it ever did before, your driveway turns into the Mississippi river, or you get a huge silt deposit where your property meets the road. What happened? You do a little digging and find out that there’s that new development up the street, your neighbor added an addition with a retaining wall, or the town widened a ditch and enlarged a culvert. The change appears to have redirected all the run-off onto your property. What do you do?
If the offender is a private party, a nuisance suit or trespass action may be the ultimate legal weapon. Both deal with unwanted impacts to land. A nuisance suit can be brought to abate or stop the nuisance. The trespass action would seek to stop the water from trespassing on your property. But first you need the facts. Drainage engineers are invaluable in assessing the situation as are land surveyors. Where is the water coming from? What are the historical patterns? Are there easements in place (written or implied) that subject your property to a certain level of drainage flow? What is the solution? What does it cost? Once the cause and solution are identified, then a discussion with the offending person or business can be initiated. Consultation with the town code enforcement officer or building inspector may help, but municipalities resist getting involved in what they consider “private disputes.”
If the offender is the municipality, it is wise to first consult the town administrator, code enforcer, building inspector, or road agent, depending on the source of the problem. If you do not receive satisfaction, then bring your case to the town selectman, town or city council. These officials manage the affairs of the municipality and ultimately answer to legal action. Be calm, prepared and take notes. Let the professionals devise the solution and be prepared to compromise, a bit, on recovering these costs. If you’ve had damage from the water intrusion, quantify your damages, alert your insurer, and follow your insurer’s advice on recovering the damages.
Drainage problems can have multiple causes and involve more than one contributing entity, change or condition. Some flooding and water damage events result from historic rainfall no one could plan for. Other water run-off situations are the product of a failure to consider or anticipate where the water will go once the landscape is changed. And in some situations, surface water flows can impact groundwater levels causing damage from below as well as above the ground. So when the rains come down and the floods come up, call a lawyer (and an engineer) to see what your options are.