It seems like it rained most all of this past winter. It rained for 4 days straight as this post was being written, and regardless of your beliefs regarding climate change, it is a fact that we in the Carolinas have had more than our fair share of rain over the last few years.
Rain, and the flow of it across the ground that we call storm water management, is probably the most common issue we face regularly as homeowners association attorneys. I’ve certainly been fielding a lot of calls lately about it.
The general rule regarding storm water is that a property owner is not liable to neighboring property owners for storm water flowing across his or her property onto their property, unless the property owner has changed the natural flow of storm water across his or her property in a way that adversely affects the neighbor by directing more water onto the neighbor’s property than would otherwise naturally occur.
Thus, in general, each homeowner in a homeowners association is responsible for storm water flow across his or her property and cannot blame his or her uphill neighbor for storm water naturally flowing downhill onto his lot, unless he can show that the neighbor made changes to his lot which are directing an unnatural amount of water onto him/her. It is important to keep this common law concept in mind if you are having grading work done on your property or putting in an in-ground swimming pool, for example. You must do so in a way in which manages the storm water on your own property and does not direct additional storm water onto your neighbors.
We often hear from our homeowners association clients when property owners in the neighborhood demand that the association step in to correct adverse drainage across the owner’s lot. Take a look at the awful situation shown in the video.
Unfortunately in almost all cases, the homeowner’s wish to make poor drainage the association’s responsibility is headed down the drain. Unless the restrictive covenants provide otherwise, storm water pipes, drains, swales, ditches, and the like on a homeowner’s lot are that homeowner’s responsibility to maintain, and an individual homeowner rarely has recourse against any other parties for excessive storm water coursing across the surface of his or her lot, or for the maintenance and repair of storm water pipes installed within their lot. That bell tolls for him or her and no one else.
In general, homeowmers own their lots down to the center of the earth and up into the sky as far as the eye can see, and everything in between. This includes any storm water pipes installed on or under the property, even though the storm water pipe was probably installed by the developer or the home builder, not the homeowner, and even though the storm water pipe may drain water from other lots, common areas, or roads of the neighborhood and not just from the homeowner’s own lot.
From the prospective of the homeowner’s association, this is the correct result. The primary purposes of a homeowner’s association are to maintain property values and maintain the common elements. It is not a police force, nor is it a public works department. The association did not design, approve, or construct the lots or the roads, nor does it usually have the right to go upon lots to correct topography or drainage, nor does it typically have the financial resources to do so. The homeowner must generally look to his or her own resources or confer with their neighbors to address storm water problems.
Occasionally, storm water apparatus may be maintained by the local municipality, and if so that municipality should always be the first recourse to assist with storm water issues. Most cities and counties have storm water engineers on staff due to the increasing requirements of the federal government under the Clean Water Act and most are more than willing to come out and meet on site to examine issues. Occasionally, there may also be issues with storm water catch basins or drains constructed within city streets or state-maintained roads, so the city transportation department or North Carolina Department of Transportation, if a state road, are often good resources. Remember that in North Carolina, counties do not maintain roads, so do not call your local county government with street or road related issues in most cases.
The only instances where a homeowner’s association might have liability for storm water issues are where the association owns adjacent common area. If the association itself has made topographic changes to common area it owns and which is causing adverse drainage onto a neighbor’s lots, then it of course may be liable. And in some case, the restrictive covenants for the neighborhood specifically provide that the association is to maintain the storm water management structures throughout the neighborhood. (This would occur more often in a commercial property owners association, or sometimes in a condominium or townhome situation – almost never in a single-family detached subdivision.)
If the subdivision has private roads which are maintained by the association, the same situation as described above with city or state roads might apply, so the association needs to make sure any catch basins or storm drains within its privately-maintained roads are properly maintained so that they are draining the roads as originally designed. But again, the association did not design, approve, or construct the roads, so it generally cannot be held liable for inadequate design, but only for failing to reasonably and properly maintain those specific storm water management devices which are within its private roads, or any catch basins or similar devices it owns or maintains. Storm water pipes, ditches, drains, and swales on individual lots generally do not fall within this area of responsibility.
Don’t hesitate to contact us if we can assist your association, whether during rain or shine or sleet or dark of night!