Drainage Disputes between Property Owners

Drainage DisputesDrainage disputes involving water drainage frequently arise in Orange County – and all around Southern California for property owners who live in, on or near hillsides or where one property is below adjoining higher properties.

Sooner or later, most real estate attorneys are asked:

“Can my neighbor drain their water onto my property?”

Orange County Hillside Property Owners and Drainage Laws

Natural water flow in Southern California is typically from small local creeks, brooks, springs or during rain events where the resultant storm water drainage causing drainage disputes. The problems can be serious, ranging from minor aggravations due to wet soil, to costly major headaches such as home flooding, mud flows, foundation damage from hydraulic pressure and the partial or complete undermining of foundations.

Local government regulations regarding water flow and drainage disputes resulting from drainage from one property to another are quite rare, especially in non-incorporated, county, or rural areas.  Therefore, drainage disputes and water flow issues are normally governed by common law principles in California.  In legal speak, the “dominant estate” (or dominant property) is the property at the higher elevation, from which water flows.  The “servient estate” (or servient property) is the property with the lower elevation, onto which water flows.

drainage disputes - image of damageIf water flow exists in its natural state – the owner of the property at the higher elevation has the right for that water to flow from their property onto all properties having lower elevations pursuant to the natural flow.  That is, so long as water is flowing off the higher property at the natural flow (i.e., the speed, frequency, intensity and path of the water has not been changed from its natural condition).

Lower Property Owner – Moreover, the owners of the lower properties upon which water naturally flows cannot change that water flow to the detriment of the owner of the higher property.  In other words, properties at a lower elevation must continue to “accept” water which flows naturally from properties located at higher elevations.  If the owner of a lower property attempts to stop, alter, or impede such water flow and such alteration causes damage or injury to the higher property (for example, storm water is backed up onto the higher property, which did not occur before), the owner of the lower property could be held liable for money damages or subject to a cease and desist order from a court.

Higher Property Owner – Conversely,  the reverse of this common law rule is the mandate that the owner of the higher property may not change the conditions on their land in such a fashion as to increase the burden of the water flow onto the lower properties.  That is, the owner of the higher property cannot –  by development or other alteration of the land – increase the amount, frequency, intensity, or speed of water flow onto the lower properties in such a fashion as to injure or damage the lower properties.  If the owner of a higher property alters water flow onto a lower property in such a fashion as to cause injury or damage, the owner of the higher property can be liable for money damages or be subject to a cease and desist order or an injunction from a court.

Upshot – In summary, anyone who alters the natural water flow or storm water drainage can potentially be liable for damages or be required by a court to put the land back the way it was before the alteration.

Exception is Drainage Easement by Prescription

One exception to this common law rule involves drainage easements by prescription.  If someone has altered the natural water drainage and such alteration occurs or is tolerated for 15-years or longer, the property owner claiming damage could lose their claims.  In that case, the property owner who altered the drainage for 15-years or longer may, in certain cases, obtain a drainage easement by prescription.  If that occurs, the altered drainage which has occurred for more than 15-years essentially becomes the new natural water course.


Water Flow or Drainage Disputes?

What can a property owner do – if it is believed that neighboring properties have been altered in such a fashion to adversely affect drainage onto their property?  Consider a free phone consultation with Orange County drainage disputes attorney Edwin Fahlen. Edwin Fahlen has practiced real estate law in California for more than 30-years and is also a licensed California Real Estate Broker . Attorney Fahlen will likely suggest it is usually beneficial to all parties involved to attempt to resolve drainage problems out of court without resulting to litigation. Edwin can present your drainage disputes case to the neighbor by letter or in a meeting to attempt to have the drainage issue resolved amicably. If the neighbor is resistant or unwilling to remedy the drainage problem, the affected property owner will normally have to file a civil lawsuit for damages or injunctive relief. Attorney Edwin Fahlen is sensitive to the cost of litigation and would suggest litigation only as a last resort due to the expense, time and potential impact on neighborly relations.

Sometimes, when a compromise cannot be reached initially, parties involved in drainage disputes can take advantage of ADR (Alternative Dispute Resolution) where the parties submit the dispute to a third party for mediation or binding arbitration, which can also lead to a resolution of the matter.

Free Introductory Meeting

Orange County Real Estate Lawyer Edwin FahlenI encourage you call be for a free phone consultation by calling (714) 395-5605. If you are unable to call me, contact me with my Schedule a FREE Consultation form below. Besides being a real estate attorney, I am also a licensed California Real Estate Broker.

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