What Every Property Owner Should Consider in View of El Nino

By David Hamerslough

If El Nino pans out in February/March 2016 as expected, it will have positive as well as negative impacts. On the positive side, El Nino could begin to replenish our water supplies, which is something we desperately need after this extended drought.

Unfortunately, heavy rains can result in claims for property damage related to the flow of surface and subsurface water and the overflow of streams, creeks, and other natural water courses. Homeowners who have not experienced these events may not realize the potential risk that they face with respect to not only their own property but also with respect to claims made against them by their neighbors due to any of the foregoing events occurring on their property.

This article is a general discussion of some of the issues that can arise when water flows from one property onto another due to a storm, a flood, or modifications made by a property owner. I will conclude by recommending some ways to address these issues before they occur.

California law distinguishes between surface water and flood water. Surface water is defined as “water which is diffused over the surface of land, or contained in depressions therein, and resulting from rain, snow, or which rises to the surface in springs.” It is distinguishable from water flowing “in a fixed channel, so as to constitute a water course, or water collected in an identifiable body, such as a river or lake. The extraordinary overflow of rivers and streams is known as floodwater.”

With regard to the rights and liabilities of adjoining landowners with respect to the flow of surface waters, California now follows a doctrine known as “reasonable use.” What this means is that a property owner must exercise reasonable care to maintain its property in such a way that doesn’t cause injury or harm to the land of another. If the natural flow of water from a property is altered in any way (which is often the result of improvement of the land, landscaping, and the collection of water in drains, downspouts, swales, contours, etc.), the property owner who altered its natural flow is responsible to any adjoining property owner harmed thereby, unless that adjoining owner acted unreasonably. The owner from whose property the surface water flows escapes liability only if he or she acted reasonably and the lower owner acted unreasonably. The rule of “reasonable use” takes into account all of the facts and circumstances of the parties and properties involved. No party may act arbitrarily and unreasonably in its relations with other property owners.

A different rule governs the control of floodwaters. True floodwaters are waters that escape from the usual channels under conditions that do not ordinarily occur. In this circumstance, California law applies the “common enemy doctrine” to evaluate the rights and responsibilities of respective property owners. This doctrine provides that a landowner does have the right to protect his property against floodwaters and may obstruct the flow of such waters onto his property even if the obstruction diverts the floodwaters onto another person’s land. California law does, however, qualify this doctrine by requiring that any protective measures be reasonable and by requiring any property owner to exercise reasonable care and skill in the management of his property under these circumstances.

What this means on a practical level is that a property owner should be aware of how water enters and exits its property, whether it does so due to the natural condition of the land or whether it has been altered in any way by the development or improvement of the land, and whether the water qualifies as surface waters or floodwaters or is a natural watercourse.

When faced with these issues, it is advisable to retain a qualified geotechnical engineer or other engineer with the necessary knowledge, training, skill, and experience to evaluate these issues. A qualified engineer can evaluate what is the natural flow of water from a property (either surface or floodwater), whether it has been altered by any improvement, and how to collect and discharge the water in a way that doesn’t harm adjoining property, as well as the other issues giving rise to a potential problem. If a property owner does not have any historical knowledge on these subjects, neighbors, governmental agencies, and contractors who previously worked on the property are a source of information with respect to these issues. Government agencies may also have historical information available for review and data on remediations previously implemented and whether they were successful or not. Prior insurance claims may also provide a source of information as a result of investigations that may have been performed by engineers and contractors due to water damage.

A property owner will also want to consult with their insurance broker to determine what coverage is available for these issues. Many property owners will be surprised to learn that coverage may be extremely limited, if it exists at all, for claims of this nature.

The law in this area and the scope of insurance coverage for these types of claims were developed following the claims and litigation that arose following the severe winter storms of the early 1980s. Whether this year’s El Nino will have the same impact remains to be seen, but evaluating and preparing for these potential issues in advance will be a good first step for any property owners who want to establish that they acted reasonably with regard to these issues and their potential impact on their neighbors.