Who is reponsible for altering the situation so that I no longer have water flowing onto my propery?
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Who is reponsible for altering the situation so that I no longer have water flowing onto my propery?
The former owner of my next door neighbour’s property poured leftover concrete from a driveway he was building to make a concrete slab, half of which is on my property. There is 14 feet x 30 inches of concrete on my property. His driveway is elevated above my property, so the slab has a downward slope as it extends from his property onto mine. When ice or snow freezes on this slab and then melts, the water flows onto my property and into my garage. I want the half that is on my property removed. Who should pay to rectify the situation? Thank you.
Asked on May 10, 2016 under Real Estate Law, Alaska
Answers:
S.L,. Member, California Bar / FreeAdvice Contributing Attorney
Answered 7 years ago | Contributor
Your neighbor is liable for nuisance which is an unreasonable interference with your use and enjoyment of your property.
Although your neighbor should pay to rectify this situation, damages (monetary compensation) in a lawsuit for nuisance may be an inadequate remedy because of multiplicity of lawsuits and because land is unique.
When damages are inadequate, the appropriate remedy is an injunction to have your neighbor take corrective action to stop flooding your property.
The court may initially grant a temporary restraining order which will be in effect until a preliminary hearing when the court will determine whether or not to grant an injunction. The preliminary injunction, if granted, will be in effect until trial when the court will determine whether or not to issue a permanent injunction.
In determining whether to issue an injunction, the court balances the hardships (competing interests) of the parties; for example, the hardship to you if the flooding continues versus the hardship to your neighbor regarding removal of the portion of the slab that is causing the flooding.
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