Homeowners could be held liable for neighbour’s flood damage

Torrential rain in many parts of South Africa has led to flooding and property owners need to be aware that they could be exposed to additional liability in such cases.

So says Johannes du Plessis, legal advisor at Risk Benefit Solutions (RBS), adding that property owners are, to some extent, held responsible for the flow of storm water on their properties. “The reasoning is, because urban tenements have been developed, the flow of water on the property is no longer natural. Therefore, if storm water run-off from an individual’s property causes damage to a neighbour’s, it can be argued that this was due to negligence,” said Du Plessis.

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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 water.

Du Plessis added that there have been such cases in South Africa in the past. “Some of the notable cases 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 onto a neighbour’s property. In both cases, the property owners, who had caused the flooding, were held responsible for paying the damages that resulted,” he said.

Du Plessis said it’s clear that every owner of an urban property has to make sure that the water on their own land is either adequately contained or diverted to the adjoining street. “At the same time, a property owner needs to be sure that they are not obstructing or altering the flow of water from his neighbour’s property.”

Du Plessis also added that the neighbour cannot hold the original developer responsible. “The court specifically places this liability against the property owner,” he said.

“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.”

The types of damages recorded in events like 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 measure 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 storm water,” Du Plessis concluded.