Water Damage

Feeling a little wet behind the ears? Here's what you should know about water damage, your neighbors and the law.

When water causes property damage -- flooded basements, collapsing retaining walls or soggy gardens, for example -- feuds between neighbors often result. But the legal issues can be as muddy as the mess in your backyard.

Acts of God

The law does not hold landowners responsible for things they cannot control: natural events in which they had no part. But damage is often caused by a combination of factors, divine and mortal. If an act of God and somebody's carelessness combine to create harm, the careless person is liable, at least in part.

Most court cases between neighbors that involve water are the result of runoff and flooding from rainwater.

The "common enemy" rule. In the past, many courts treated excessive rainwater as a "common enemy," damaging property at random. Under this theory, you were expected to take measures to protect your own property from water coursing across the land. Even if a neighbor on higher ground diverted water to prevent flooding and deposited it on you, you were expected to protect yourself from the extra water.

The courts that still declare water a common enemy now impose some restrictions on upper landowners. In New York, you can improve your land without being liable for a change in flow of surface waters, provided you do not resort to drains, pipes or ditches.

The District of Columbia's approach is similar. In a case where a house was flooded with water and mud after neighboring property was demolished and graded, the flooded neighbor lost in court. The work was not unusual or extraordinary.

The reasonableness rule.Today, in almost all other places, when one neighbor alters the land and damage occurs to another, the neighbor is liable for the damage if the alteration was "unreasonable." But what to one neighbor appears perfectly reasonable may not seem so at all to another.

Judges have wrestled with these questions for hundreds of years. In 1886, a court decided that although building a house was reasonable, installing a roof without gutters, which caused a neighbor to flood, was not. Gutters and downspouts that send rainwater gushing onto a neighbor's property are also unreasonable alterations to natural flow.

What about digging a ditch that redirects rainwater onto someone else's property? One neighbor in Wisconsin who did this caused water to stand and erode the other's retaining wall. He was guilty of intentionally trespassing on the neighbor's property. But if the ditch were absolutely necessary to prevent huge harm and the damage to the neighbor were slight, there might be an exception.

In a 1980 Nevada case, development of a new subdivision severely flooded neighbors who were there first, destroying one person's property completely. The developers and the county were found to have acted unreasonably and were liable for the damage.

Some states have laws prohibiting landowners from diverting surface water onto a neighbor's property. Texas, for example, provides that no person may divert or impound the natural flow of surface waters in a manner that damages the property of another by the overflow.

What the Neighbor at Fault
Must Pay For

If a neighbor is legally responsible for water damage you suffer, you may be entitled to:

• compensation for cost of repairs and replacements
• compensation for expenses such as having to stay at a motel
• compensation for mental distress, if you have suffered an underlying physical injury.
• reimbursement for medical expenses.
• punitive damages, if a neighbor acted maliciously. For example, a man in Vermont built a road and two culverts on his land that resulted in flooding the property next door. When the neighbor complained, he built a third culvert that made the flooding worse. He was also verbally abusive to the neighbor. When she sued, the court not only compensated her for her damage, but also ordered the neighbor to stop the water diversion and to pay extra money to her as punishment for malice.

Judges also frequently 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, relandscape property or redo a culvert.

Homeowner's Insurance

Insurance in water damage cases is tricky. If the water comes into your home from an inside source -- say, from a pipe in the townhouse next door -- your ordinary homeowner's insurance should come into play. Contact your agent; your company may pay for your damage and then go after whoever caused it for repayment.

When the damage comes from outside rising water, even if your neighbor's action caused the problem, you may need flood insurance to involve your own company. However, if the problem was caused at least in part by a neighbor, your neighbor's company may well pay you directly. That person's insurance company might also tell your neighbor to correct the problem -- or risk cancellation of the insurance policy.