QThe English basement of our townhouse floods due to a neighbor's failure to drain her roof water into a wastewater drain or to take some other action to eliminate this water from our rear yard. Our house is on a downslope from this neighbor's townhouse.
We have asked the neighbor to properly drain this water, but she has refused. Last summer, at our expense, we installed a French drain in our backyard and a two-inch concrete step to serve as a water barrier.
Recently, our basement flooded again. What legal remedy do we have to compel our neighbor to correct this problem? Is she liable for damages? Could we require her to pay for the costs of installing the French drain, as well as the interior damage?
AIf the rainwater flowed naturally downhill from your neighbor's property, it might be argued that it is "an act of God" for which your neighbor would have no responsibility. However, as you have described the problem, it is not a natural flow of water. Your neighbor -- or someone in her chain of title many years ago -- built her townhouse, which appears to be the cause of your water damage.
You have several options.
First, consult a professional engineer who is versed in water-related issues. The engineer should investigate the situation and give you a written report, which should address possible solutions to the problem and their costs. The report will cost you money, but should you decide to sue your neighbor, you will need an engineer to testify the source and cause of your water damage.
Once you have this report, you or your lawyer should make a formal demand that your neighbor correct the problem. A copy of the engineer's report should be attached to your letter. Give your neighbor two or three weeks to respond.
Sometimes, such a letter (especially if it comes from a lawyer) will do the trick. If the deadline passes with no response, you should telephone or visit the neighbor and find out what she plans to do. It is important to take these steps, especially if you eventually go to court. Judges try to get disputing parties to try to reach an amicable settlement, and a judge will take into account that you tried to resolve the dispute before filing your lawsuit.
If money is the reason your neighbor is not willing to cooperate, you might consider offering to pay a portion of the cost of fixing the problem. Should you sue, you will probably pay more in legal fees than you may have to pay to your neighbor.
Another suggestion is to contact your local housing code enforcement agency and ask it to investigate. It might take some time to get inspectors out to the property, but they might determine that your neighbor is not complying with applicable housing and building codes and force the neighbor to make the corrections.
Should you decide to sue, a positive report from the housing inspector will be useful as you present your case to the judge.
If you sue, your complaint will allege negligence, based on improper drainage. You will ask for damages, which will include the cost to repair your English basement as well as the cost of installing the French drain. You will also ask the court to reimburse you for the money you paid to your lawyer.
I must caution you, however, that should you prevail in court, you probably will not get a judgment for the French drain installation and you definitely will not get an award for your legal fees.
The court may consider the French drain an improvement to your house, even though the only reason you installed it was to protect yourself from your neighbor's drainage problem.
Regarding your legal fees, courts follow what is known as "the American Rule," namely each side pays its own legal fees. There are some exceptions to the rule, including:
* If there is a violation of a consumer protection law that allows for legal fees to the prevailing party.
* If there is a written document signed by both parties that specifically provides that legal fees will be awarded against the losing party.
* If the court wants to punish one of the parties in the litigation. That won't happen unless the situation is so egregious that the judge believes such punishment is warranted.
Your problem may be bad, but litigation should be your last resort. It is time-consuming, expensive and uncertain.
Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.