ASK A LAWYER - Trouble Pours Out The Downspout

Orlando Sentinel, November 17, 2008

Question:
My next-door neighbors installed gutters on their house, with two downspouts that discharge water heavily on our property every time it rains.

There has been soil erosion on their deeply sloped property that continues to get worse. We have talked to the owners about the problem to no avail. They now have moved out, and their property is rented.

I am concerned that the erosion and flooding will eventually cause damage to my property and to the foundation of my house. What legal recourse do I have?
C.H.
Orlando


FRANK POHL
Pohl & Short, P.A.

Answer:
Both you and your neighbor enjoy certain rights of land ownership. Rain runoff from your neighbor’s higher ground is entitled to its natural flow onto and from his land. Florida law does not permit your neighbor, however, to direct the water flow onto your property if it results in damage to your house and land.

Florida law also recognizes your “reasonable” right to protect your property from this excess water from these downspouts. Subject to any zoning or subdivision limitations, you could construct a fence or wall to slow down or divert the water flow, as long as the fence or wall doesn’t cause the water to pool and flood your neighbor’s property.

The Florida courts apply a reasonableness standard in interpreting these cases.

At this point, you might get some help, or at least advice, from your local government department that handles drainage issues. (In Orange County, for example, it’s the Roads and Drainage Department.) If that doesn’t work, you may need a lawyer to file a legal action to have the excess water discharge directed away from your property, and to determine if you can sue for specific damages.

Visit our website for more information on this subject.

Frank Pohl founded Pohl & Short, P.A. based upon the belief that a high quality small commercial law firm was needed in the Orlando, Florida area as an alternative to the large commercial law firms. He still believes that client responsiveness and satisfaction has a place in a fast changing legal profession. Frank has been involved in the Central Florida community for more than twenty-five years. He has been a dedicated past board member of many local organizations over the years. Frank graduated magna cum laude with a B.G.S. Degree from the University of Miami in Coral Gables, Florida; attended the University College at the University of London as an undergraduate studying British literature and British history; obtained his Juris Doctorate Degree in 1979; and obtained a Masters of Law and Letters Degree (LL.M.) from New York University School of Law in 1980. Frank is a member of The Florida Bar, the California Bar, and the District of Columbia Court of Appeals. He is also admitted to the U.S. Supreme Court. He has served on the Orange County Bar Association Real Estate Committee and is a member of the The Florida Bar’s Real Property and Corporation and Business Law Section. He has also served on the Florida Bar Grievance Committee.