Maybe your neighbor has water from their adjoining property draining onto your property, and you are wondering if they can do this. Or, maybe, on the other hand, you are draining water from your yard into your neighbor’s and wonder if this is allowed.
Many times, we have a property that does not drain well on its own, and we install drains and pipes to help funnel pooling rainwater away from buildings and out of our yards. Often, this is never a problem, but sometimes, a neighbor will take issue with the fact that another is draining water onto their property.
If you are the neighbor having the water drained onto your property, or you are the one doing the draining, you may be wondering if this is allowed and what the remedies might be for this.
The North Carolina Supreme Court in Pendergrast v Aiken has adopted the “rule of reasonable use” with respect to surface water drainage, which allows landowners to “make a reasonable use of [their] land, even though the flow of surface water is altered thereby and causes some harm to others.”
This, however, does not mean that a person can just drain as much water as they like onto their neighbor’s property in any manner that they want to. The court stated that there can be a cause of action if the flow of water causes substantial damage, and one of two situations applies.
If the harm caused is substantial and the person diverting the water made the alterations in a way that is either (1) intentional or reckless, or (2) negligent, reckless, or in the course of an abnormally dangerous activity, then there may be legal remedies available.
Thus, in essence, a person can divert water to their neighbor’s yard so long as it does not cause substantial harm, and even if it does cause substantial harm, they can still do so long as it is not unreasonable and is not negligent, reckless, or in the course of an abnormally dangerous activity.
When Is Water Drainage Considered Unlawful?
Water drainage between properties can become a legal issue when it causes substantial harm and meets certain conditions. Under the common enemy rule, surface water is considered a common enemy to all property owners, and each owner is expected to protect their land from it.
The North Carolina Supreme Court, in Pendergrast v Aiken, established guidelines for when altering the natural flow of water drainage is considered unlawful. Here are the conditions under which water drainage can lead to legal action:
Conditions for Legal Action
- Substantial Harm: The water drainage must cause significant damage to the neighboring property. Minor inconveniences or trivial issues typically do not qualify for legal remedies.
- Intentional or Reckless Actions: If the property owner deliberately alters the flow of water in a way that causes substantial damage, they can be held liable. Similarly, if the alterations are made recklessly, without regard for the potential harm, legal action may be warranted.
- Negligent Actions: Even if the water drainage alterations are not intentional or reckless, negligence can still lead to liability. Negligence occurs when the property owner fails to take reasonable care in managing water drainage, resulting in substantial harm to the neighboring property.
- Abnormally Dangerous Activities: If the water drainage occurs as part of an inherently dangerous activity, the property owner may be held liable for any resulting damage. This applies even if the activity itself is legal as long as it poses a significant risk to others.
- Civil Law Rule: Under the civil law rule, also known as the Natural Flow Rule, a landowner may be held liable if they change the natural flow of water on their land and it results in harm to another owner. Most states have modified this rule to allow changes as long as they are reasonable.
Examples of Unlawful Surface Water Drainage
- Intentional Diversion: A homeowner installs a drainage system that deliberately channels a large volume of water directly onto a neighbor’s property, causing flooding and erosion. The intentional act of diverting water makes this unlawful.
- Reckless Alterations: A property owner makes significant changes to their landscape, such as removing natural barriers or redirecting water flow, without considering the potential impact on adjacent properties. The reckless disregard for the consequences can lead to legal action.
- Negligent Maintenance: Failing to maintain drainage systems, such as clogged gutters or broken pipes, can result in substantial water damage to neighboring properties. The property owner’s negligence in managing their drainage systems makes them liable.
- Dangerous Activities: Engaging in activities like large-scale construction or industrial operations that alter water flow and pose a high risk of damage to neighboring properties can result in liability, even if the activities are otherwise legal.
- Naturally Occurring Rain: Changes in land conditions or alterations made by neighbors may affect the flow of naturally occurring rain onto neighboring properties, leading to potential liability.
Understanding these conditions can help property owners manage their water drainage responsibly and avoid legal disputes. If you face issues with water drainage, consulting with legal professionals like King Law can provide you with the guidance and support you need.
What Are the Legal Remedies for Unlawful Water Drainage?
Unlawful water drainage can lead to significant property damage and disputes between neighbors. If you are affected by your neighbor’s improper water drainage or if your drainage practices are causing issues for your neighbor, there are several legal remedies available.
Understanding these options can help you protect your property and resolve conflicts effectively. Understanding real estate law and consulting with a real estate attorney can help you navigate these legal remedies effectively.
Potential Legal Actions Under the Reasonable Use Rule
- Filing a Complaint: If your neighbor’s drainage is causing substantial harm, you can file a formal complaint with your local government or environmental protection agency. This may prompt an investigation and lead to enforcement actions against the offending party.
- Civil Lawsuit: You can file a civil lawsuit against your neighbor for damages caused by unlawful water drainage. In such cases, you will need to prove that the drainage caused substantial harm and that the actions were intentional, reckless, or negligent. Successful lawsuits can result in monetary compensation for damages and an injunction to prevent further harm.
- Mediation and Arbitration: In some cases, mediation or arbitration can be a less adversarial way to resolve drainage disputes. These processes involve a neutral third party who helps both sides reach an agreement without going to court. Mediation and arbitration can be quicker and less costly than a lawsuit.
- Reasonable Use Rule: Landowners are allowed to make reasonable use of their property, even if it results in harm to another landowner. However, they will be responsible for the damage if the reason for changing the flow of surface water is unreasonable.
Steps to Take if Your Drainage Is Causing Issues
- Assess the Situation: Determine whether your drainage practices on your own property are causing substantial harm to your neighbor’s property. Consult with a professional, such as a civil engineer or landscaper, to evaluate the impact of your drainage system.
- Communicate with Your Neighbor: Open a dialogue with your neighbor to discuss the issue. Addressing the problem amicably can often lead to a mutually acceptable solution without legal intervention.
- Consult Legal Counsel: If the issue persists or if legal action seems imminent, seek advice from an attorney. A lawyer experienced in property and environmental law can provide guidance on your rights and obligations, helping you navigate potential legal challenges.
Addressing water drainage issues promptly and responsibly can prevent legal disputes and maintain good neighborly relations.
Speak With the Personal Injury Lawyers of King Law
If you are dealing with water drainage issues between your property and a neighbor’s, King Law is here to help. Our experienced team understands the intricacies of North Carolina property laws and is committed to providing the legal support you need.
Whether you are facing substantial harm from a neighbor’s drainage or need guidance on managing your own water flow responsibly, we can offer you the best possible legal solutions.
At King Law, we bring over 350 combined years of legal experience, serving over 84,000 clients since 2002. Our client-focused approach ensures personalized attention to your unique situation, and our track record of success speaks to our dedication and experience.
Let us help you navigate the legal complexities of property and water drainage disputes. Give us a call at (888) 748-5464 and we would be glad to discuss this issue and any potential legal remedies with you.
