The Water Log: A Deed Holder’s Intro to Storm Runoff

Storms aren’t exactly getting milder out there. And did you know that rainstorms can implicate a property owner’s rights?

Severe or recurrent storms can create significant challenges for a deed holder. Flooding is the costliest risk for homes. Here, we cover just the basics of stormwater and deeds.  

Two Things Are Certain: State Law, and Gravity

When ground is covered with homes, concrete, and lawns, rainwater can’t easily be absorbed by the soil, trees, and atmosphere. Concrete and even lawns create impervious surfaces, through which water can’t sink naturally into the ground. Instead, the rainfall becomes stormwater runoff.

Stormwater is, of course, a major cause of flooding. Knowing a home’s history and risk of flooding helps us grasp the financial risks connected to a deed transfer. While water is life, it can also mean loss. According to the National Association of REALTORS® an inch of floodwater can create structural damage to the tune of $25K.

There are laws that deal with these risks. Consider the Pennsylvania Stormwater Management Act. Your state will have its own stormwater laws and regulations. And don’t forget local stormwater rules. Local ordinances affect a deed holder’s rights and duties wherever people own land.

If your land is on high ground, water might run off of it, and onto a nearby property. That’s an act of gravity. By default, you have no duty to stop rainwater from running downhill. The Pennsylvania law on this comes from a long-held view, originating with Pennsylvania’s supreme court. Essentially, for the purposes of runoff, the higher landowner has an easement over the lower neighbor’s land.

Trouble in Shiloh: Do deed restrictions stop owners of flooded properties from suing Alabama?

Go With the Flow (Don’t Redirect it)

The deed holder on higher ground could be held liable for redirecting the flow to the detriment of the lower homeowner. Now it gets complicated. To stay with the example of Pennsylvania, the higher owner may not:

• Collect or unnaturally change the flow of water so that the neighbor gets more of it.  

• Change the natural flow by concentrating the runoff — no matter if the neighbor gets more in volume or not. 

Simply put, it’s not OK to redirect the natural flow or direction of stormwater. In the typical state’s law, no one may redirect water to an adjacent property by creating channels, installing pipes, or building any kind of unusual features.

An owner who changes their land’s grading could have to redo it, and also be liable for related flood damages next door. This holds true even if the higher owner got a local permit for the work.

The upper landowner may avoid liability if the impact on the lower deed holder is “necessary” and the upper landowner applied reasonable care. But these are issues to be hashed out in court. If you’re ever at odds with your neighbor over this, you’ll need to consult a lawyer with experience in stormwater management.

Read up on the changing rules of disclosing flood risk—and get an idea of your home’s vulnerability.

Covenants and Restrictions That Prevent Stormwater Disputes

Best management practices can prevent runoff, at least to a degree. For example, by planting and maintaining native trees and shrubs, a homeowner supports natural features that intercept rainwater so it can evaporate from the leaves. Native plantings need less upkeep in general. They thrive in local soils without chemical treatments.

Best management practices can be written into deeds. Then they bind each owner of the property. In other words, they run with the land. Developers should be sure to draft clear, detailed covenants and restrictions.

Each county government has an office for the recorder of deeds. Anyone can check public records for covenants and restrictions. Deed holders responsible for stormwater-related practices can be fined or billed by local government officials if they neglect the work, or destroy runoff prevention features.

If a company takes on the required maintenance duties, the deed holder must allow access for workers and inspectors.

Planning to cover some land with structures or pavement? First, learn the rules for zoning variances. Townships regulate the amount of impervious surfaces permitted on home properties. Deed holders wanting variances need to appear at public hearings. Neighbors get notices in the mail, informing them of their opportunity to weigh in.

A Few Basic Features That Reduce Stormwater Runoff

So, what are a deed holder’s best management practices? Typical examples are:

• Planting or preserving greenery that has naturally evolved in the home’s region. Remember that these plants need less watering. The deep roots of the plants drink up the rainwater, unlike short-rooted lawn grasses.

• Creating rain gardens. These features begin with a shallow but expansive dent in the ground, to hold runoff. The owner keeps native plants in the rain garden to filter rainwater and let it drain naturally. (See also: retention ponds.) 

• Establishing vegetated swales. Tall, native grasses fill these carefully designed channels in the earth. These features purify and absorb stormwater. They replace curb and gutter drainage.

A deed holder needs the local township’s support to create a rain garden or stormwater swale, or convert a lawn to native plantings. Permits for stormwater features should set forth the maintenance and inspection needs, and the best timing for them.

All homes have some sort of drainage features. So, all homeowners have a starting point to do their part for their communities. Homeowners can position gutter downspouts away from structures and paved surfaces. Downspouts should send rainwater into the yard where it can be absorbed and cleansed naturally by the soil. Sumped downspouts (dry wells) handle runoff by draining rainwater slowly into the ground.

Also, homeowners can set up rain barrels or cisterns. These receive rainwater from roof surfaces and allow the resident to save water for gardening.

Contact your township’s environmental advisory committee for guidance on maintaining, fixing or replacing any of the above features. Local officials will also recommend against compacting the soil by parking vehicles on it.

Watery Words to the Wise

Where woods and meadows are lost, and water falls on pavement and roofs, rain can’t do what comes naturally. So, the more development in a given place, the more runoff it has. Runoff carries pollution into natural bodies of water. It can do the same to homes.

Moreover, as tidal rivers are rising, so are flood risks throughout our continent. Deed holders need to know about the home’s possible flood history, and potential vulnerability.

If you have questions about complying with related restrictions and laws, contact your township. And if flooding or runoff problems arise from developed land uphill or next door, consult a local attorney. Stormwater is a complicated topic in property law.