Need Citation for neighbors liability for Storm Water runoff in California
Michael H. Lester
During El Nino, his backyard flooded and drained into my yard, causing
$10,000 damage to my garage and its contents. His insurance company
denied the claim on the grounds my neighbor did not alter the property
drainage and could not foresee the damage. I have heard that the
neighbor is liable, but I need a citation to the law in this
situation.
Thank you,
Michael Lester
whhatlaw
event. It seems to me the insurance company is almost surely right. Water
will flow from higher elevations to lower and the mere fact that someone
owns higher ground doesn't make them liable to someone who chooses to occupy
lower ground. If they had changed the grade of the land so as to increase
the speed or volume of the water going on to your property, or built a wall
which diverted the natural flow so that it went on your property, they would
have liability.
William Marvin
>My Neighbor's property has a slightly higher elevation than mine. During
>El Nino, his backyard flooded and drained into my yard, causing $10,000
>damage to my garage and its contents. His insurance company denied the
>claim on the grounds my neighbor did not alter the property drainage and
>could not foresee the damage. I have heard that the neighbor is liable,
>but I need a citation to the law in this situation.
Did you put a claim in to your own insurer? Wouldn't hurt to report it,
although most Homeowner's policies exclude damage from ground water
flooding.
Unfortunately, your neighbor's insurer MAY be correct. You need to
determine that the law is in California.
The rule in most states, I think, is that a property owner is not liable
for natural water runoff. It's only if he alters the landscape so as to
increase and concentrate the runoff, thereby causing damage to a
neighbor's property, that he's liable.
As we often remark, California is unlike the other 49 in many respects, so
you should consult a local lawyer to find out.
+----------------------------------------------+
|--William D. Marvin, Esq. ++ wdm...@ibm.net--|
|---------Abington, PA (215) 881-9488---------|
|-visit Philadelphia Trial Lawyers on the Web -|
+---------- http://philatla.org ---------------+
!fortune.tag
Michael H. Lester
it provides no citation or any real discussion of the issue, but it
does seem rather adamant that there is liability for water runoff (see
the end of the article). I have asked a couple of attorney friends to
research it for me. If I get a citation, I'll post it.
Michael
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May 17, 1996
Resolving sticky neighbor disputes
By Marc Weiss
Trees, views, fences, and boundary disputes are common problems
faced by homeowners. What are the rights and responsibilities of
neighbors regarding these issues?
Good neighbors communicate, resolving problems to their mutual
benefit without resorting to the legal system. Mediation may
result in a practical solution both can accept.
Our legal system descends from British common law. Statutes are
passed by legislators to control specific situations; `common
law' has been developed by judges who interpret statutes and
situations not specifically addressed by statutes, generally
using theories of fairness for the best long term benefit of
benefit of society. Many of the rules discussed here were
developed over the last 7 centuries, and are a little surprising
in the modern world.
BOUNDARY LINE DISPUTES
Our neighbor just had a survey: our house/fence /driveway is
really one foot on his property. What can we do?
The common law doctrines of adverse possession and prescriptive
easements sensibly allow continued use of other's property to the
same extent that it has been occupied/used for at least 5 years.
[This is commonly known as "squatters' rights."]
Additional requirements are that the possession by the non-owner
be open, notorious, and hostile. For the "squatter" to obtain
actual ownership, he must also pay the property taxes on the
occupied land.
Alternatively, if it can be proven that both neighbors (or the
prior owners) had agreed that the fence was the boundary line,
after 5 years, the common boundary theory makes it so.
FENCES
The boundary line fence fell down in a recent storm. Who is
responsible?
Good neighbors will agree on splitting the cost of the repair.
Civil Code §841 requires that owners contribute to maintain
fences between them, unless one of them chooses to let his land
lie unfenced; if he later fences his property, he then is
responsible for payment of a proportional share of the value of
the fence.
TREES
1) "My neighbor's tree overhangs my property. What are my
rights?"
Traditionally, a property owner had full right to all of his
property, from the center of the earth to heaven. This made sense
at the time of the Magna Carta when British common law began, but
has been sensibly limited with the advent of airflight.
Although you may cut tree limbs and remove roots from your
neighbor's tree where they cross over the property line, you
cannot do so if it will damage the continued viability of his
tree.
2) "The recent storms knocked down my neighbor's tree limb onto
my property, causing damage to my house/car/lawn furniture."
Whether the tree limb had overhung the property does not matter.
The neighbor is only responsible for negligence: If he was
careless, he is responsible; if the damage was from an act of
God, the neighbor is not responsible.
If a tree limb appeared precarious and the owner failed to
maintain the tree after warnings, he is responsible for resulting
damage when a storm causes the limb to fall. If the tree was well
maintained and a storm knocked it down onto your roof, the
neighbor is not responsible.
3) His tree has grown wider, encroaching onto my property [or
pushing aside my fence].
This is a continuing trespass and the neighbor must remove his
tree (regardless of how long it has been encroaching).
[A boundary tree is one planted on the boundary. It cannot be
removed without mutual agreement.]
4) His leaves keep blowing onto my yard. And they blocked my
gutters causing damage to my house.
Tough. There is no liability for leaves which are natural
products. [Common law developed in an agrarian society.]
VIEWS
My neighbor's tree has grown large:
* my view has been ruined
* my natural sunshine is blocked
* my air circulation is affected.
In California, as an example, there is no right to
view/sunshine/air circulation, unless a local ordinance has been
passed.
My neighbor is building an addition which will:
* ruin my view
* harm my property value
The local zoning and building departments control these issues.
If the neighbor meets their requirements, generally nothing can
be done.
WATER
My neighbor's rain water runoff damaged my property.
Natural runoff is not actionable. However, natural runoff never
exists in urban areas. Any grading or building alters the natural
runoff and the owner is responsible for damage.
This information is designed to be of general interest. The
specific techniques and information discussed may not apply to
you. Before acting on any matter contained herein, you should
consult with your personal legal adviser.
Marc Weiss
Weiss & Weissman, Inc.
San Francisco, CA 94105
© 1996 Inman News Features.
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Michael H. Lester
wrote:
>Did you put a claim in to your own insurer? Wouldn't hurt to report it,
>although most Homeowner's policies exclude damage from ground water
>flooding.
I did put in a claim to my own insurer, and as predicted, they denied
the claim as "excluded seepage." In fact, my contractor is probably
liable, as he installed a French Drain to handle this situation and
failed to extend the drain to a low point in the backyard as per the
contract. I was hoping to get some insurance coverage to help finance
the repairs in hopes the contractor would do a better job.
Thanks, Michael