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Q&A: What if a neighbor’s drainage hurts my lawn?

Posted by Editor on January 18, 2019
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Question: My neighbor’s gutter downspouts drain water onto my property, damaging part of my lawn. What are my rights and what can I do to resolve the issue? – Richard

Answer: The law is different for drainage on vacant land, where the water will flow naturally, and when buildings or other improvements change the natural flow of the water.

Traditionally, disputes were governed by two rules, the “common enemy rule” and the “civil law rule.”

Under the common enemy rule, owners could deal with the water on their land without regard to anyone else’s property.

The civil law rule dictated that the higher-elevation owner was responsible for damage to the lower owner when the first owner changed the natural flow of water, such as in your situation.

Because both of these doctrines were insufficient to deal with growing populations, a third rule was developed, called the “reasonable use rule.” Under this doctrine, each owner may make reasonable use of his or her land even when the flow of water is changed, resulting in some harm to others. However, the landowner will be liable when the changes to the natural drainage flow are unreasonable.

This rule lines up with the centuries-old idea that you should use your property in a way that does not injure your neighbor’s.

Like with most disputes, your first step is to speak with your neighbor and see if he can redirect the flow of the drainage in such a way that it does not damage your lawn, such as down his driveway.

If he refuses, see if there is a way to divert the water, making sure that this does not cause damage to him or any other neighbor.

If you live in a community association, you can also speak to your property manager to see if they can assist in resolving the problem. When all else fails, you should consult with a lawyer experienced with such matters.

About the writer: Gary M. Singer is a Florida attorney and board-certified as an expert in real estate law by the Florida Bar. He practices real estate, business litigation and contract law from his office in Sunrise, Fla. He is the chairman of the Real Estate Section of the Broward County Bar Association and is a co-host of the weekly radio show Legal News and Review. He frequently consults on general real estate matters and trends in Florida with various companies across the nation.© 2019 Sun Sentinel (Fort Lauderdale, Fla.), Gary M. Singer. Distributed by Tribune Content Agency, LLC.  

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