Is a property owner responsible for the water that drains off his roof and that causes damage to a neighboring property?

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Is a property owner responsible for the water that drains off his roof and that causes damage to a neighboring property?

My neighbor’s property sits about 3 feet higher than mine and he drains all the water from his roof pointing to my property. It goes straight into my basement and this last storm I had 1000 gallons of water from his roof in my basement with a lot damage. Is he responsible for this damage? He even has let his gutters go broken or missing in one spot so the water just runs from there onto my basement.

Asked on August 15, 2011 New Jersey

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You could sue your neighbor for nuisance.  Nuisance is a serious and unreasonable interference with your use and enjoyment of your property.  Your damages (the amount you are seeking to recover in your lawsuit) would be the cost of repairs to your basement or diminution in the value of your property.

The problem with seeking damages (monetary compensation) in this type of case is that since the flooding of your basement is a continuing problem, multiple lawsuits may need to be filed. Damages would be an inadequate remedy not only due to multiplicity of lawsuits, but also because land is unique.

When damages are an inadequate remedy, you can seek an equitable remedy which in this case would be an injunction against your neighbor to stop the flooding of your property.  In order to get an injunction, you would first get a temporary restraining order which would be in place until a hearing at which time a preliminary injunction could be issued by the court.  This would be in effect until a permanent injunction is issued by the court.  The court will balance the competing interests in order to determine whether or not to issue an injunction.  The competing interests here would be the benefit to you if an injunction is granted to stop the flooding.  The burden to your neighbor would be the cost involved to stop the flooding.  Some courts may require a bond in order to obtain an injunction.  This can be very expensive, but is within the discretion of the judge and the bond requirement can be waived for economic hardship or other reasons.

If an injunction is granted, its language will probably be in the negative to avoid enforcement problems; for example, neighbor is not to flood your property.  This is just an example and is not the exact wording of the injunction.  To avoid enforcement problems, the injunction is phrased in the negative instead of requiring specific construction projects to prevent the flooding.


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