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February 8, 2001
by Stuart Lieberman
A person recently came to my law office with a problem. He lives in a house with a quarter-acre property. He has been there ten years and has not had any problems. Until, that is, a small factory was built on property up the hill from his home.
The factory makes granite composite products and there is lots of water used in the process. Every day, the water runs off the factory and floods this guy’s house. What can he do? He may be able to do several things. His problem is not unique. Many property developments cause flooding down hill. Whether the down hill property owner has recourse depends on the laws, and court decisions, in the state that he/or she is located. But, there are some general points that often apply in all 50 states.
First, one cannot trespass on another’s property. When most people think of “trespassing” they might think of walking on someone else’s property. But if you discard something from your property, let’s say storm water runoff, and direct that water so that it floods your neighbor’s property, that too may be a form of trespass.
A trespass is what lawyers call a “tort,” just as is negligence (as in car accidents). If your neighbor is committing a tort, you may have recourse by going to court and suing for damages. Damages may include the costs of fixing what has been ruined and the cost of stopping the problem from re-occurring. If you’re forced to relocate, those costs may be considered to be compensable as well. You need a good lawyer.
If the action is intentional, or nearly willful, you may also be entitled to “punitive damages.” Punitive damages are designed to punish the wrongdoer and the amount of punitive damages that will be awarded relates to the size of the defendant. So if you are going to be inconvenienced, hope that it is by a wealthy defendant, such as a big company.
Another basis for court relief is a “nuisance” claim. In most states, it is considered to be a nuisance if another person causes an action that interferes with your use and enjoyment of your property. If continued flooding is making you miserable, you may have a cause of action that lies in nuisance.
If the flooding is caused by your neighbor’s carelessness, you may also have a “negligence” claim, the same legal basis for many lawsuits concerning auto accidents.
Negligence occurs when someone does something that most people similarly situated would not do. The courts may provide some relief. But, there is another place that might do so as well, and maybe even more quickly. Many municipal or local ordinances prohibit conduct that results in flooding. This means that a police report or other kind of municipal complaint can be filed and charges can be brought against the wrongdoer. While you will not recover money if this solution works, the flooding should at least stop. And if you have lost money due to the flooding, there is nothing to say that you cannot do both: file a municipal complaint and sue for damages in court.
Some parts of the country still have Justices of the Peace. I wish we still had them here in New Jersey. These were usually the kinds of people who could quickly get to the bottom of this kind of problem, without being over threatening and otherwise ruining a neighborhood. The more we develop and pave, the more flooding becomes a problem. In densely populated states, such as New Jersey, we have terrible flooding problems because there has been so much paving over the years. Whereas water was once naturally absorbed into the ground, excessive and uncontrolled paving leaves no place for heavy rainwater run off to go. So flooding results.
Don’t let your neighbor rain on your parade, or — for that matter — flood your property. Flooding is destructive, and in severe instances can undermine a home’s foundation. If your neighbor is flooding your property, try to work things out amicably. If that is not possible, you may need the services of capable legal counsel from your neck of the woods.
For more articles by Stuart Leiberman, please press here
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