Who is Responsible for Water Runoff, The Upstream or Downstream Owner?

by Sandra L. Gottlieb, Esq., Senior Partner, SwedelsonGottlieb, Community Association Attorneys

On occasion, we deal with slope and water runoff issues, as a result of poorly installed drainage or otherwise, between neighboring associations, a sub and a master association, or with owners. We have found that it is a common misconception that the law provides that where neither party has done anything to specifically cause or exacerbate the water runoff, the upstream property owner has a responsibility to take care of any damage suffered by the downstream property owner as a result of the runoff. The concept that the upstream property owner is strictly liable for the runoff of water emanating through or by its property is not correct. This misconception appears to be the result of confusion between the traditional rule of liability with the current law on liability as it relates to real property matters.

Traditionally, absolute liability had been imposed on one who diverts stream water out of its natural channel and onto adjacent lands. Under current rules of law, if both the downstream property owner and upstream property owner have acted reasonably, the natural watercourse rule imposes the burden of stream-caused damage on the downstream property owner (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 337). In the worst of circumstances, a party who is found to have acted unreasonably in causing damage to a downstream property is liable only for the proportion of damage attributable to his conduct (Locklin, at 337). Note, however, that the failure to exercise reasonable care to avoid injury to adjacent property through the flow of surface waters may result in liability by the upper to the lower landowner. However, there is no strict liability, and even the court in Locklin stated that it is unreasonable to have a rule of strict liability in this regard (Locklin, at 352).

If your association is experiencing water runoff issues, such as those discussed above, please contact our attorneys so we can analyze your specific facts and provide you with a legal opinion and a proposed plan of action as it relates to same.

Contact Sandra Gottlieb at slg@sghoalaw.com.