After the flood: What to do when the water recedes

This month's record rains have generated a number of questions to Home Forum regarding water runoff and damage. As the rains are predicted to continue — don't they every winter? — it seems a good time to offer a water-issues primer in addition to answering questions.

Our experts are Karen Willie, a longtime Seattle attorney who helped write surface-water rules used throughout much of the Puget Sound area and her associate Rob Cousins, an attorney, engineering geologist and hydrogeologist.

They approach this issue with perspective. Because of the expense involved, most surface-water systems are built for routine storms — not a "100-year event," defined as 4 inches of rain within 24 hours.

"We can have storms that exceed the capacity of systems that were built legally, and that's just the way it is," Cousins said.

So the first thing homeowners plagued with water problems should do is assess the nature of their problem.

If it's caused by a rare storm, there may not be a realistic way to prevent damage.

However, if the water problem is less severe but chronic — the kind that happens when typical heavy rains hit — it's worth exploring possible fixes. That's particularly true if the damage is traceable to man-made structures: houses, streets, ditches, downspouts, driveways, etc.

Learn about landslides

Excess water is often the culprit in landslides. Learn how to protect yourself, whether you're the uphill neighbor or the one below, at a meeting early next month. No registration is required, and the event is open to residents throughout the area.

What: Sponsored by the Seattle Department of Planning and Development, the meeting will feature experts from engineering, building and arboriculture organizations who will discuss landslide causes and proper drainage and vegetation for sloping sites. They also will answer questions.

When: 10 a.m.-noon Dec. 2

Where: Jerry Brockey Center, Room A, South Seattle Community College, 6000 16th Ave. S.W., Seattle; park in the south lot

Cost: free

State law dating back decades recognizes that "water is the common enemy of everyone, and therefore you have right to conduct it off your property," Willie said.

More recently the courts have said that people must exercise "due care" in how they handle their water problems. This means they can't collect water by artificial means and let it flow onto a neighbor's property in such a way that the water damages that neighbor's property. But proving that is tough.

"The court will look into each situation and see if it was done with due care," Cousins said. "These are subtle distinctions."

Now, from readers:

Q: We live in a hillside community where runoff from individual homes is usually piped off to an area of the property where it can be absorbed. However, when the volume of runoff exceeds the capacity for absorption, the excess is sometimes transferred as surface water from one private property to another before it eventually reaches a publicly owned storm drain or roadside ditch. Is it reasonable to expect property owners in this transfer chain to stand the expense of piping the runoff through their properties, particularly when easements have been designated for this purpose?

A: "The easy answer is no; the individuals would not normally be paying for piping the community's flow," Willie said.

If you live in a neighborhood with a homeowners' association, you can ask the association to fix the problem. Otherwise, if damage is occurring, the neighbor with the damage can "write a demand letter to the other homeowners, and their insurance will step in," Willie said.

Sometimes, however, it takes threat of a lawsuit to get any action, particularly if owners balk out of fear that their insurance will go up. Fear of insurance problems isn't a valid reason for ducking responsibility, though.

Q: Several years ago the former owner of the home next door paved over a large gravel area that bordered the driveway between our houses. He didn't get a permit to do so. Now all the runoff water from that paved area, plus the driveway, plus the two downspouts on their roof, all drain into an inadequate 4-by-4 drain. This drain often backs up; the water runs onto my property and into my crawl space. The home has been sold, and I've asked my new neighbor to fix the problem, but he never does anything. What should I do?

A: How long has this been going on? If it's 10 years or more, your neighbor may have a "surface-water easement by prescription." That's the legal way of saying it's gone on for so long they now have the right to let their water flow onto your property.

That's why "people need to be really careful to do something," Willie said. "They can't just fret for 10 years."

Nor should you want to. As Cousins pointed out, water in a crawl space can lead to mold problems and warped floors.

But let's say the runoff problem is less than a decade old. Your new neighbor must fix the situation and may be able to pass on the expense to the previous owner. If that owner needed a permit to do the paving and didn't get it, "that's proof of negligence," Willie said.

However you can't assume a permit was necessary. That's often not the case.

So here's how to solve your problem. Start by asking your neighbor to hire an expert — ideally a geotechnical engineer — to design a solution and implement it. If the neighbor isn't agreeable, prodding from an attorney is advisable.

Q: I live in a new subdivision in Mount Vernon. The new house next door is on higher ground that slopes steeply toward my property. I contacted the builder and the city to voice concerns that runoff from this neighboring property will flood my yard. The builder's response was to put an additional drainpipe below one-third of the embankment. The city said the builder has complied with department requirements and thus has no more responsibility and neither does the city. Is this so, and if so, is the new owner of the house responsible?

A: Here's a question response. Has your yard flooded, or are you just afraid it will?

"The court said fear of flooding is not enough, so there's no cause of action for just fear of flooding," Willie said.

In other words, people can't force others to act based on their fear alone.

But let's say our recent rains did cause problems.

"The city is never liable when they have their permitting hat on," said Willie, because of a "public-duty doctrine" that absolves it when its acting officially.

This doctrine makes sense, Willie says; otherwise the city would be the insurer for every mistake a developer makes, effectively passing the bill on to the taxpayers.

However, despite what the city says, the developer isn't immune.

"Complying with the code isn't enough if there's a discernable problem and you didn't deal with it," Willie said, citing court rulings. "Then you're negligent, and once you've been told of the problem, you have to make good."

A recent change in the law relates to initial owners of new homes. If you uncover a problem you think could eventually develop into a lawsuit and you want to preserve your right to sue, you have 45 days to serve the builder with legal notice that the problem exists.

The builder has 21 days to respond. If that doesn't bring resolution, you can proceed with a lawsuit.

To protect yourself, Willie suggests that you put both the developer and your uphill neighbor on notice that you expect a solution — pronto.

Q: The retaining wall between my backyard and my neighbor's was in bad shape before the recent storms. Now it's showing signs of buckling because of the water. I don't know who owns this wall, so I don't know who's responsible. Help!

A: This is a common situation that can be surprisingly complex. Among the issues: Whose property is benefited by the wall? Why was it built where it was?

Sometimes the answer is that your property or your neighbor's was either leveled off or filled in, and the wall was a byproduct of that earth-sculpting and an effort to keep the dirt from shifting.

If the wall was built to benefit your property, it's probably your responsibility. If it was built to benefit's your neighbor's property, it's his responsibility. But in the case of an old wall, you may not be able to easily tell that.

Another factor is the property line. Is the wall on one side or does it straddle it? Also germane: Was there ever a recorded maintenance agreement? A search of your property records may tell you.

Cousins suggests you start by determining whether the wall is a hazard. Often what looks like a retaining wall really isn't one. It's more ornamental. If you think there's a danger, you can get your local government involved. It may require a fix.

Short of that, if you determine the wall is your responsibility, fix it. If it's your neighbor's, ask this person to do the work. If that doesn't happen willingly, contact a lawyer.

However, if it's not clear whose the wall it is, figure out a reasonably priced fix and ask your neighbor to split it with you. If the neighbor isn't receptive, "these types of cases are well-suited for mediation," Willie said. Most counties offer it either free or at low cost.

Then you'll want a signed and officially recorded document covering maintenance responsibilities. That way future owners won't be in the same quandary you are.

Home Forum answers readers' real-estate questions. Send questions to Home Forum, Seattle Times, P.O. Box 1845, Seattle, WA 98111, or call 206-464-8510 to leave a question on a recorded line. The e-mail address is erhodes@seattletimes.com. Sorry, no personal replies. More columns at www.seattletimes.com/columnists.