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A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer

This blog is a personal blog written to discuss legal issues affecting Georgia property, and how it is damaged, transferred, and fought over. I write this partly to keep abreast of the law, and partly to offer a forum for my writing. In order to find content, I often analyze Georgia Supreme Court decisions. I try to update this blog as I can, but writing is a time consuming process.

Friday, October 1, 2010

Missing Ditches, and Sinkholes, on Association Properties

Lore v. Suwanee Creek Homeowners Association

In a recent court opinion, Georgia courts dismissed a claim of a neighbor against her homeowners association related to alleged erosion damages she allegedly suffered from the absence of a ditch that the plaintiff claimed the developer or association should have built on the homeowner association’s common property.  The court dismissed the nuisance and trespass claims for injury to the plaintiff’s property because it held the plaintiff homeowner had failed to present any evidence that the damages on the homeowner’s land were caused by the absence of the ditch on the property under control of the association.   Lore v. Suwanee Creek Homeowners Ass'n, Inc., Case Nos. A10A0012, A10A0013  (Ga.App., June 24, 2010.)

In Lore, the the evidence indicated the association was responsible for a recreation area with the presence of a sinkhole and an allegedly missing ditch.  The plaintiff complained that she tripped in a sinkhole and also complained that a ditch should have been built through the area to redirect flows of water across the association property in a way that the water would not inundate the plaintiff’s property.    The plaintiff claimed water concentrated from a pipe outfall and needed to be redirected to a stream instead of being permitted to sheet flow on to her.  

The case involved a rather unusual claim of trip and fall injuries -- combined with injuries to real property due to erosion.  It is hard to determine from reading the opinion whether the plaintiff thought the ditch would have prevented her from tipping over into the sinkhole.  Anyway, the plaintiff homeowner filed a claim for personal injuries due to tripping over a sinkhole on the recreation property, and included a claim for damages to real property (her homesite) due to erosion from the absence of a ditch on the uphill land.   The court dismissed the nuisance claim, but allowed the personal injury claim to go forward.  Go figure.  

One might read the case for the proposition that associations do not have responsibility for water flowing off common area.  (I am sure there are association and developer lawyers out there who will.)  However, one could just as easily read the case for the proposition that trip and fall rights are superior to land owner rights.  Either reading would be comical though.

The case does not appear to add anything to existing precedents regarding association responsibilities, or nuisance law regarding riparian or drainage rights.  The court dismissed the nuisance claim on grounds that indicated the plaintiff had added the claim almost as an afterthought to the main claim for personal injuries -- which was undoubtedly an insurable claim. The court held:   

Mrs. Lore's testimony that she observed water “coming specifically from the [SCHOA] property” from pipes is simply insufficient. There is no evidence regarding the amounts or sources of water runoff from the Recreation Area to the Lores' property before the property was developed. And the Lores have presented no testimony, expert or otherwise, that any damage to their property was a result of an increase in quantity or concentration of water caused by SCHOA and different than if “[the water] simply ran down upon it from the upper [property] by the law of gravitation.” Rather, the Lores rely on the mere fact that the drainage ditch was not installed by the developer or SCHOA thereafter, but they do not causally link this fact to the soil and landscaping washing away.The Lores' failure to present evidence of proximate cause is fatal to their claims for nuisance, trespass, and negligence based on water runoff from SCHOA property.

Lore v. Suwanee Creek Homeowners Ass'n, Inc.,  supra.

The quote says it all.  Plaintiffs need to present evidence if they are going to claim that missing ditches are causing flooding and erosion problems.  Enuf said.

Now, I could stop here and dismiss the case as merely entertaining.  But there could be more to the court’s reasoning.  From a policy standpoint, the case could be very significant.  The opinion emphasized the absence of a showing of proximate cause in relation to a missing ditch.  If the court had held the opposite -- that is, that a plaintiff can prove an uphill owner had an obligation to build a new, non-natural ditch to control and redirect non-natural flows from an uphill source with no more showing than the plaintiff’s own testimony, sans engineering expert  -- the potential liability for up hill landowners in an urban world could be greatly expanded.   Urban construction changes all natural flow.  Literally, everyone in Atlanta could be held accountable for missing ditches if water flowed across their land down hill to the injury of another.

Teague & Zeliff, LLC

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