My Property has a Major Water Issue from a Drainage Easement, Can I Hold my HOA Liable?

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“We purchased our home in 2006, upon receiving the property survey we discovered a drainage easement running through the middle of the property from the front to the back. As this was a deal breaker for us and not initially disclosed, we asked to terminate the deal. At that point, we were told that the easement was superfluous and that the HOA had put in a different easement along the street line. They removed the easement from the property, I have letters from the HOA and township validating this. The problem is that the water issue was not mitigated. In fact, in the winter (when the ground freezes), water runs through that area like a small river and now the rest of the property “downstream” from that area is also starting to collect standing water. My question is, since we were misinformed about the easement and the necessity of it, and since we have a major water issue and would not have purchased this home had that been disclosed to us, can we hold the HOA responsible to resolve this issue at their cost. In addition, if an easement is required on this property, can we hold the HOA liable for the dimished value of the home as a result? Thanks!”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

It sounds like the problem is not the easement or lack thereof, but the water itself. If you’re clear that no easement exists (or did when you closed), then this would be treated the same as any case where water flows from one property onto another.

Depending on the circumstances, you may or may not have legal rights against the “upstream” property owner, whoever that is. This will also depend on your local law, as for example some places make a distinction between the “natural” flow of water and water which is directed due to man-made objects (channels, buildings, etc.).

Bottom line, you should a) try to get an idea of how much it will cost to repair this problem, and b) if it’s large enough, talk to a good local real estate attorney.



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Author: House Attorney

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