Homeowners could be held liable for neighbours’ flood damages

With torrential rain in many parts of South Africa having led to numerous flooding events, property owners need to be aware that they are potentially exposed to additional liability in such cases.

Johannes du Plessis, legal advisor at Risk Benefit Solutions said property owners were to some extent, held responsible for the flow of stormwater on their properties.

“The reasoning is, because urban tenements have been developed, the flow of water on the property is no longer natural,” he said “Therefore, if stormwater run-off from an individual’s property causes damage to a neighbour’s, it can be argued that this was due to negligence.”

Du Plessis said there have been such cases in South Africa in the past. “Some of the notable cases that are still referenced often include instances where water ran off a roof onto an adjoining property and where a newly erected boundary wall had disrupted the natural flow of water on a neighbour’s property. In both of these cases, the property owners who had caused the flooding were held responsible for paying the damages that resulted.”

He stated that it was clear that every owner of an urban tenement had to make sure that the water on his own land was either adequately contained or diverted to the adjoining street. “At the same time, a property owner needs to be sure that he is not obstructing or altering the flow of water from his neighbour’s property.”

Du Plessis stressed that the prejudiced neighbour cannot hold the original developer responsible. “The court specifically places this liability against the property owner.

“According to the court, if it is impossible to discharge the water onto the adjoining street, the owner is still liable to take reasonable precautions to prevent injury to persons and damage to property on adjoining properties. Therefore, the property owner might still be liable for injury or damages to their neighbours if the property owner did not take reasonable precautions to prevent injury or damage to their neighbours.”

The types of damages recorded in events such as these range from damage to structures to loss of assets and even physical injuries, in certain cases.

According to Du Plessis, insurers also expect homeowners to implement any possible measures for risk mitigation to make sure that water flow on their properties is not the cause of damages.

“We generally see a significant spike in flooding claims at this time of year. In the case of flooding-related third party claims against a property owner, an insurer might well refuse to pay for damages if it is found that the owner did not make every effort to control the flow of stormwater,” Du Plessis said