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Water, Water, Everywhere (2022-2023 Version)

By David Hamerslough

March 12th, 2023

This year’s rains have already produced new claims similar to those experienced in 2016-2017 and in the early 1980s. Water is gurgling, bubbling, percolating, ponding, flowing, and/or streaming up, out of, and/or over property, whether through existing drainage systems or otherwise. Mud, dirt, silt, and other debris are being deposited on adjoining properties. Hillsides are saturated and are sliding, slumping, or otherwise moving. Property owners are damming, sandbagging, channeling, or otherwise trying to reroute the water away from their residences and direct the mud, dirt, and other debris away as well. Sump pumps that have been inactive for years are activating and discharging additional water. The volume of water has caused soil to expand, resulting in new cracks or opening up existing cracks in interior sheetrock and foundations and causing doors and windows to stick and otherwise stop operating properly.

All of this water is causing property owners to evaluate what rights they have against adjoining property owners, sellers, brokers, and agents. The legal issues involved in evaluating these potential claims include the law on controlling the flow of surface waters, nuisance, disclosure, fiduciary duties, negligence, and claims concerning new construction under the Right To Repair Act (SB 800).

The rights and liabilities of adjoining landowners with respect to the flow of surface or subsurface water and any accompanying mud, dirt, debris, etc. is subject to a legal doctrine known as “reasonable use.” What this means is that a property owner must exercise reasonable care to maintain his/her property in such a way that it does not 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 improvements to a property, landscaping, or the collection of water in drains, downspouts, swales, contours, etc.) or is redirected by a homeowner, the property owner who altered its natural flow is responsible to any adjoining property owner harmed thereby, unless the adjoining owner acted unreasonably. The owner from whose property the surface water flows escapes liability only if he/she acted reasonably and the lower owner acted unreasonably. The rules of “reasonable use” take 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.

What this means on a practical level is that a property owner should be aware of how water enters and exits his/her property and whether it does so due to the natural condition of the land or whether it does so due to development or improvement of the land.

A qualified geotechnical engineer or civil engineer can evaluate these issues, including identifying the natural flow of water from a property, whether it has been or will be altered by any improvement, and how to collect and discharge the water in a way that doesn’t harm adjoining properties. The solution may involve working together with your neighbors to create a joint drainage system or tying into an existing city or county drainage system. A property owner who fails to properly evaluate these issues may face a claim for negligence or nuisance.

Saturated soil is also resulting in claims that involve the appearance of new and/or old cracks in the interior sheetrock and foundations, as well as issues with swelling doors that stick and windows that no longer operate smoothly. Usually, the basic cause of these problems is the expansion and contraction of the soil over extended periods of drought followed by a year of heavy rains. Once again, a qualified geotechnical engineer or civil engineer can evaluate the soil- and drainage-related issues while a qualified civil or structural engineer can evaluate any other issues associated with cracking in the foundation and/or the interior sheetrock. Repairs involving soil, drainage, and foundation issues are typically performed by qualified engineering contractors. Interior repairs will usually be needed following work of this nature and are performed by qualified general contractors.

Claims against sellers, brokers, and agents arising out of these issues generally concern the disclosures made by a seller and the advice and counsel provided by the broker/agent to the buyer based on the disclosures, inspections, and other information that was known to the buyer. Sellers need to understand that they have a duty to disclose any historical material fact and historical documents relating to these issues, even if they believe that those issues have been adequately addressed or believe that such issues were one-time incidents. It is always safer to make a full and complete disclosure rather than defend a claim by arguing that the information was not material, that the issue had been remedied, or that the buyer was aware of the problem.

Sellers also need to thoroughly read the disclosure documents to understand where there are questions related to these issues. For example, Section 2(A) of the TDS requests that a property owner indicate whether the property contains sump pumps and asks whether those pumps are in operating condition. Section 2(C), questions 7 and 8, ask if the seller is aware of “[a]ny settling from any cause, or slippage, sliding, or other soil problems” and any “[f]looding, drainage or grading problems.” A seller needs to understand that each of these words relates to a separate condition or subject. Among others, Part IV, Section A, B, C, and D, in the PRDS Supplemental Seller’s Checklist also asks very specific questions about different types of soil issues, settlement, past or present water-related issues, cracking, etc. These questions also advise the seller to disclose any related documents that they have in their possession. Similarly, there are questions in the C.A.R. Seller Property Questionnaire that ask for information on these subjects (¶ 8(A), 10). In addition, ¶ 5 of the SPQ requires the delivery of historical documents on these and other subjects if they are in the possession of the seller. Brokers and agents need to understand the circumstances under which they too need to provide historical documents that may relate to these issues.

Brokers and agents representing buyers often become involved in these claims because of their fiduciary duties. The most common type of claim concerns what advice and counsel the broker/agent provided to the buyer in view of the disclosures and information that was known to the buyer. Alternatively, claims are made based upon the theory that the broker/agent knew, or should have known, of the likelihood of water- or soil-related issues in a particular neighborhood or geographic area.

This article is a general discussion of some of the types of claims being made due to issues resulting from this winter’s heavy rains. There are other substantive and procedural issues, including statute of limitations issues, that need to be evaluated with respect to these types of claims. Any party involved in such a claim should consult the appropriate qualified professionals regarding engineering, construction, or legal issues.