Is It Legal For Your Neighbors To Redirect Rainwater Runoff Toward Your Property? Law Offices of Kenny Tan Attorneys Diamond Bar California

Is It Legal For Your Neighbors To Redirect Rainwater Runoff Toward Your Property?

Posted by: Kenny Tan
January 18, 2011
Topic: Neighbors

Last week, two people -unknown to each other and thus unaware of what each other was consulting about- one in the morning and one in the afternoon, consulted me on a nearly identical legal issue.

They both complained about their neighbors redirecting their surface runoffs toward their properties. What makes this a rare coincidence is that in both instances, the problem didn't exist until their neighbors raised their grades in a manner that caused surface water to run off onto adjacent properties.

What legal rights do they have as lower property owners against their neighbors?

Under the traditional common enemy doctrine, each property owner has an unqualified right to fend off surface waters and not incur liability to the adjacent property owners even when he alters the natural course of drainage water. But that rule has been modified. The reasonableness test has been adopted and can be summarized in lay terms as follows:

If the upper owner is reasonable and the lower owner unreasonable, the upper owner wins; 2. If the upper owner is unreasonable and the lower owner reasonable, the lower owner wins; and 3. If both the upper and the lower owner are reasonable, the lower owner wins also.( Burrows v. State (1968) 260 Cal.App.2d 29)

Under this rule, the lower owner usually wins unless he has acted unreasonably.

Under what scenario then will the lower owner be considered to have so acted? It has been suggested that one such scenario will be when the lower owner unreasonably obstruct the flow of surface waters from the property of the upper owner or fail to take precautions to avoid or reduce potential injury.

The rule doesn't address who the winner is if both acted unreasonably such as the case where the neighbors wage an all out war against each other.

I did a little googling and found a California Building Code that requires alteration of drainage to have been allowed only upon application to a building office. (Section 14.08.142(B)(2))

Perhaps one can argue that failure to get a permit or approval from the city prior to changing the drainage on one's lot is per se unreasonable.

If you're the upper owner and has sought a permit from the city before you alter the drainage, chances you won't get into trouble with your neighbors because the city would have required you to design the drainage to flow toward the street and down the city's storm drain system and away from your neighbor's property.