After the Rain, Neighbors Spar Over Damages
Laws Vary on Who Gets the Blame for The Mess Left Behind

By Marianne Kyriakos
Special to The Washington Post
Saturday, July 1, 2006

The rains came, leaving many Washington area property owners struggling this week with flooded basements and downed trees. Act of God or act of neighbor? The legal and insurance issues can be as muddy as the floors.

"Welcome to the complex, situational world of property law," said Audrey McFarlane, associate professor at University of Baltimore School of Law.

Where to begin? "Whip that insurance policy out," D.C. real estate lawyer Craig Ellis said. "Study it. Even then, expect your agent or policy to quibble with you."

More advice from Washington area property law experts:

Our basement flooded because our neighbor's downspout diverters are aimed at our house. Is there anything we can do?

It depends on where you live, said J. Peter Byrne, a Georgetown University Law Center professor. "If A diverts rainwater so as to make it flow more onto B's land, is A responsible legally?" There are two approaches, he said. "D.C. and Virginia follow the common enemy rule, under which either party can make the water flow away from themselves and onto their neighbor's land without liability."

Maryland follows the "civil law rule," where a homeowner "is responsible for actions that force the water" onto her neighbor's property and cause damage.

Both approaches, Byrne said, "depend a great deal on facts" and are tempered by concern over whether each party acted reasonably or negligently.

Ellis recommended a reputable landscape architect or environmental engineer for guidance. "They'll make excellent expert witnesses," he said. "Expensive, too."

Know your local ordinances, said Ilya Somin, a professor at George Mason University School of Law. He said the laws can vary from area to area.

My tree fell on the neighbor's property. Am I responsible?

Probably not, if the tree was healthy, real estate lawyer Jeffrey Nadel said. "Trees are falling in our area because the ground is saturated. You are not responsible for an act of God, because if you were, you would be God."

Somin concurred. "If a tree falls, it's not always categorically the responsibility of the owner. My inclination is that if you were not negligent, then you are not legally responsible for damage caused by your tree."

You are negligent if the tree was diseased or somehow unsafe.

The D.C. government is responsible for damage from curbside trees "if they were previously made aware that the tree had some problem," Ellis said. "Case law says you have to call and put them on notice: 'Look, this tree is leaning precariously, or it's diseased.' "

Debris from my neighbor's tree clogged my gutters.

You have no claim under Maryland -- and most other -- case law if the tree deposits debris and otherwise does damage to your house, said real estate lawyer Scott Nadel, Jeffrey Nadel's son.

Are losses from storm-related basement flooding covered under homeowners, business and renter's policies?

Not likely. Homeowners policies "generally do not cover water damage from outside sources like a flood, but would cover water from inside sources such as a broken pipe," McFarlane said.

People who live in flood-prone areas may have federal flood insurance because they were required to get it when they took out mortgages. People outside such areas are allowed to buy the insurance, too, but most don't. The insurance covers some but not all basement flood damage.

Most property-related disputes are handled through negotiations between neighbors, Somin said. He recommended the book "Order Without Law: How Neighbors Settle Disputes," by Robert C. Ellickson of Yale Law School (Harvard University Press, 2005).

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