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TL;DR: (details follow below)

Can a builder be sued for deviating from the subdivision plat, assuming it causes problems?

I live in northeast Alabama and have a drainage issue with my 11 month old home that the builder won't correct. I've signed paperwork stating I'm in agreement with their terms (I closed on the house) but I'm wondering if there's still something to be done. The grading of the lot does not appear to follow the grading that was laid out in the subdivision plat.

Summary of main points:

  • I live in the state of Alabama
    • I am interested in the laws of other states for context, though anyone with knowledge of AL law would be most helpful.
  • Are subdivision plats legally enforceable if a builder / developer deviates from the plat?
    • The builder appears to have deviated from the grading / drainage plat.
    • What entity would be able to enforce this (if enforceable)?
      • Is this something that the town or municipality would have to pursue?
    • Could a private citizen purse legal action against a builder for deviation?
      • Could this be taken up in small claims with the builder?
  • My preference would be writing a letter to the builder to attempt a resolution outside of court
    • Court is expensive!!
    • A letter will only matter if it is enforceable; no legal consequence then no teeth (at least in my opinion...)
    • I spoke with a lawyer (with a different specialty than real-estate) and they agreed that a letter would be appropriate.
  • Do I need to have a survey conducted prior to writing a letter
    • The deviation from the plat would likely have to be proven to the builder.
    • If a letter is a viable option then is it necessary to have a survey conducted before I write it?
    • Is a letter along with pictures and the plat enough?
  • If I wanted to get a lawyer to write a letter on my behalf what kind of lawyer should I look for?
    • I assume a real-estate lawyer.
    • Real-estate lawyers are nearly impossible to get ahold of at the moment (closings, closings, closings).
    • Local real-estate lawyers seem unwilling to take action against a local builder for fear of losing business.
      • Should I find an out of town real-estate lawyer (if needed)?

I spoke with a personal injury lawyer (friend of a friend of a friend - hence this post) and want to get some more well-rounded advice before making my next move.

Details:

We live in northeast Alabama (Huntsville area). We had a home built and closed on it in December of 2019 (so almost 11 months ago). We noticed some significant drainage issues after the first major rainstorm in January of 2020 but we had already closed. The closing paperwork included consent on the lot grading.

The terms of the contract are such that so long as water drains on the property within 36 hours and does not pool within 10' of the house then the builder cannot be held accountable. Both of those conditions are true. I discussed the drainage issue with the builder and they are unwilling to remedy the situation. The same was told to my neighbor (same builder). I'm not sure where the 10', 36 hour requirement comes from; I have been unable to find it in county code or state law. I probably don't know where to look.

I've spoken with a town councilor and was able to get pictures of the grading & drainage plat for the subdivision. It appears that the builder did not adhere to the grading as laid out in the plat, though I have not had a survey conducted to confirm this. Additionally, the councilor indicated that the town would not be willing to take the builder to court over this, which is understandable given the extremely localized nature of the problem.

Photos & documentation:

Here is the backyard after the rainstorm in February:

Backyard flooding

That consumes approximately 15%-20% of my entire backyard (very small lot). In the winter the ground does not entirely dry for 2-3 days, though the puddle seems to dissipate before the 36 hour marker.

Here is the drainage plat that includes the affected areas. Note that I am lot 188 and the flooding seems to start in lot 189 (my neighbor's backyard). She is also interested in what can be done about this. The builder is unwilling to assist her.

The red line is roughly where the back of the fence exists.

Drainage Plat with rough fence line

Note:

  • There are two storm drains indicated on this plat
  • The "uphill" drain has "THROAT INV = 608.00"
  • The "downhill" drain has "THROAT INV = 606.00"
  • The "uphill" drain is intended to prevent run off from lots 186, 185 etc. from coming to my lot
  • It seems effective at its task
  • The "downhill" drain is intended to capture all the run off from the back of lots 187, 188, 189 and 190

Picture of the fence in relation to the drain next to plot 187. The camera is pointed towards plot 190.

Lot 187 drain looking towards lot 190

This is a picture of my neighbor's fence line (lot 189 - I am in lot 188). Note that it does not slope downhill...

Downhill fence line

Note: I am standing on my back patio in lot 188 taking a picture of the fence line on the back of lot 189. Lot 187 is to the left of this image and lot 189 has the curve in its fence line highlighted in red.

The raise in the fence line maps the ground underneath of it. There is about a 2' increase in elevation just before the fence runs into lot 190. All the water is backing up at that point and pooling in our yards. A number of landscapers have informed me that the raise in elevation is the issue and either deep french drains or re-grading will be necessary to correct the issue.

The estimates I have received to entirely remedy the situation have ranged from $7,000 to $20,000. This could be split among the affected home owners, but it's still a decent amount of money.

My thoughts:

It's very frustrating to me that the builder was able to deviate from the plans that the town approved and then walk away, leaving the cost and burden of fixing it on the homeowners. If they had stuck to the approved plan then it's likely that this problem wouldn't exist. If they had done it correctly in the first place then I wouldn't have to spend time and money to fix it. If I have no choice but to eat the cost then I will, as I don't want my toddler tromping through the mud in the backyard after it rains.

Any advice / information would be most appreciated.

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  • the storm drains on the map are between 190 and 191 and 186 and 187. each lot is one of the numbers. the drainage pipes also are indicated on the boundaries.
    – Trish
    Oct 1, 2020 at 20:45
  • also note, that the plan indicates that the fence IS to be uphill.
    – Trish
    Oct 1, 2020 at 21:04
  • @Trish You are correct about the storm drain locations! Where on the plan is it indicated that the fence should be uphill?
    – Shrout1
    Oct 1, 2020 at 21:14
  • the red line you have is too close to the buildings - there are height lines in front of the back edge of the plot, indicating that the fence is higher than the main of the plot, and that there is a gap in that embankment in plot 187.
    – Trish
    Oct 1, 2020 at 21:26
  • 1
    This is somewhat broad, and some of it ventures into asking for legal advice (asking what you should do and what type of lawyer to get, for instance), which is off-topic here. I think this could probably be edited down to focus on a specific question about the enforceability of the plats, but it would require a bit more editing than I'm up for at the moment (especially as I'm really unfamiliar with this area of law). If you could edit it to focus on a single legal question, that would leave it in much better shape.
    – Ryan M
    Oct 3, 2020 at 1:20

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