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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.

Saturday, November 26, 2011

Avoidance of Responsibility for Flooding and Erosion

The current economic environment in Georgia has affected maintenance and improvements to storm water pipes, drainage systems, culverts, and detention ponds.  Developers have gone bankrupt and county and city governments and large insurance companies are fighting to avoid responsibility for sewers and drains due to a lack of money to address problems due to flooding and erosion.  This era has come on the heals of a construction boom that lasted fifteen (15) years leaving drainage systems unattended and deteriorating.

Property owners suffering a nuisance due to problems created by extreme rainfall events have many options to find liable parties to repair the damages to their property, but are faced with finding a lack of funded parties to finance the repairs.  Moreover, large insurance companies that may insure land owners who have helped create a problem, and governments that may own the streets and roads routing storm water flows are fighting each case aggressively to deter future suits.  The emerging liability of municipalities and counties and insurers in Metro Atlanta is in the billions.   The avoidance of responsibility by all of the parties involved is further complicated by the possibility that deeper storms and extreme rain events, such as the event that plagued the North Georgia in September 2009, are becoming more and more frequent.   

When a landowner is faced with a storm water problem caused by changes to up hill land or a failure to maintain storm drain systems or detention ponds, the property owner must find all available responsible parties in order to fund repairs and pay for damages.   These responsible parties may include counties, municipalities, home owner associations, property owner associations, neighbors who have either failed to maintain collapsing pipe systems or who made changes to their land that changed the hydrology and water flow, or the Georgia Department of Transportation where a state highway is involved.  The hope for the injured land owner is that he can find at least one financially responsible party.

If a property owner is unable to find a responsible party with the financial capability to fund repairs or pay damages, the consequences to the property owner is often devastating.  In Georgia, a land owner who has a flooding problem on his property may be required to disclose the problem to future buyers.   This requirement means that a property owner will lose all or almost all of the value in its property if a flooding or erosion problem is not repaired.  Even seemingly minor flooding problems can have an extreme effect on the value of land and can cause a land owner financial ruin. 

This does not mean that all lawsuits to fund repairs or pay damages to flooded land are necessary.  Sometimes the responsible party will readily address the nuisance it is causing and repair problems to avoid the consequences to the damaged land owner.   Also, a down hill landowner has an obligation to receive the natural runoff from adjacent lands, and cannot complain if the flooding he is experiencing is due to the fact that he owns land that is naturally prone to flooding or in a floodplain.   

On the other hand, there should be no sympathy for insurance companies, associations, and governments that fight cases of clear liability aggressively as a matter of policy.  This aggressive liability avoidance simply shifts the burden and consequences to the injured land owner who is least able to bear the consequences of problems created by other parties' negligence and failures to comply with their obligations.  Large insurance companies were happy to take customer's premiums and invest them in financial markets.  County and city governments were eager to spend money on parks and green space during the boom times.  Associations were eager to raise dues to finance expensive, luxurious amenities when property values were rising.  They all should not be tolerated if they aggressively try to punish injured property owners -- now that it has come time to pay for the basic services that should have been financed years ago.

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