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Water, Water, Everywhere

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Matthew Roberts
BKK Construction & Land Use Newsletter
September 2014

Despite the lingering effects of the Great Recession on real estate, residential infill development is a popular model in Northern Virginia for the residential developer. With infill development, a developer will typically purchase an existing home that sits on multiple legal lots, and then seek subdivision approval from the local government to create several buildable lots for new homes. But with that comes specific challenges to developed neighborhoods. Among others, neighborhoods in areas like Arlington and Fairfax are faced with increased water flow over adjoining properties, which can cause flooding of basements and backyard ponding, among other woes. So, what is everyone to do?

Surface Water and the Law

In Virginia, water is considered a “common enemy” of all property owners. Each property owner, then, has the right to defend themselves from its effects on the use of their property, subject to certain limitations. This means that a property owner may use their property, such as grading it or constructing buildings and structures on it, without incurring liability to a neighbor for increased surface water discharges over a neighbor’s property that results from these activities.

There are some basic limitations, though. A property owner cannot negligently use their property to the injury of the neighbor. So, grading and construction should be performed according to accepted industry standards or it could be actionable. Further, a property owner may not create artificial channels, like pipes or culverts, which aim surface water runoff onto a neighboring property. Similarly, property owners cannot interfere with the flow of natural channels where it causes injury to a neighbor.

A Practical Solution

Surface water cases are, at best, a difficult matter to win and take lots of time and resources on all sides. Further, a lawsuit is really not the best way to welcome a new neighbor. As one alternative, neighbors could negotiate (a practice in economics known as “Coasian Bargaining”) the manner in which surface water is diverted from a property. Solutions like installing underground piping or French drains could help alleviate or solve the issue. More than that, negotiations can balance individual rights without creating acrimonious relationships between neighbors.

Floating On

Increased surface water runoff can disrupt the ties that make a neighborhood. Yet individual property rights allow us to use our property, within reason, as we see fit. Striking a balance is difficult, but tools are available. A lawsuit is a blunt instrument, but may be necessary in some cases. A better solution in other cases may be to negotiate and allow neighbors to strike that balance themselves. In the end, the tools used should best fit a case’s unique circumstances.