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Consider two adjoining properties in a high rainfall location. Both owners are relatively recently moved in. The owner of PropertyA discovers there is ongoing property damage due to rainfall redirected by large concreted areas sloped from PropertyB into PropertyA. This construction predates the move-in of either owner.

Remedies directly on PropertyA are difficult and would only be partially effective. Remedies on PropertyB (the originator of the precipitation) are non-trivial but simpler and can be highly effective.

It seems clear that new construction on PrpopertyA that causes this situation would be actionable - e.g. Rainwater from neighbor from avvo.com

If the water discharging onto your property is creating issues you can sue the neighbor for damages and force them to ameliorate the problem.

But what about this historical situation in which the owners inherited the problem? Is the owner of PropertyA essentially dependent solely on their own partially-effective-at-best ingenuity and the "goodwill" of the other owner?

Update Based on a comment by @hilmar about a "mutual agreeable solution" then let's consider the value of undersatnding the legal basis for action.

A discussion between the property owners would be well served by a shared understanding of the legal responsibilities. If there were none then it is unlikely that a request to invest $1000's to do a basic remediation would even get off off the ground. After all PropertyB has nothing to gain from the proposed work. It would be viewed as a non-trivial cost and nuisance from the perspective of PropertyB owner. But if the discussion includes the notification of an actual legal requirement then we now have an "incentive" for PropertyB owner to participate in a serious (and not pleasant financially or schedule-wise) discussion. That leaves at least a chance of discussing an approach to "splits the difference" . E.g. PropertyA owner forking out half of the cost of the remediation on PropertyB.

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  • As in many cases, the best option would for both property owners to talk to each other and find a mutual agreeable solution. Maybe do the fix on property B but have A pay for it with B maybe chipping in a bit if the fix raises the value of their property. A should also check whether their home inspection should have caught that maybe there is some money they home inspection insurance can contribute.
    – Hilmar
    Aug 3 '21 at 16:34
  • @Hilmar I have updated the question to explain why a shared understanding of the legal aspects will be vital to having a constructive discussion. Aug 3 '21 at 17:46
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The property causing the nuisance is responsible

The state of the law on this matter is that natural water flow is not nuisance. However, if modifications are made that increase, decrease or redirect the flow and that causes issues for a neighbour, then the affected party can sue for damages and/or seek an injunction for the nuisance to stop.

This is effectively the common law position as there is no specific legislation on this. The linked case involved the landowner successfully suing the council after a road development caused ponding on disused land. These ponds were colonised by an endangered species of frog. This meant the land could not be developed and the owner was entitled to compensation for the resulting loss of value.

For your circumstance, PropertyB must modify their drainage so that they no longer cause nuisance to PropertyA and they must pay to repair the damage already done. If PropertyA is feeling generous they may allow an easement (with or without compensation for loss of value) to allow pipes to be laid across their property but they don’t have to. If that means PropertyB has to demolish the slab or properly drain it (with a pump if they can’t use gravity) then too bad.

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  • Thanks. In NSW Is this enforceable retroactively on pre-existing construction? I'm guessing that at the least there were an equivalent of a "statute of limitations" to object to the modifications? Aug 3 '21 at 23:44
  • @WestCoastProjects there’s limits on claims for damages but if the problem is ongoing it has to be remediated by the property owner irrespective of when the changes were made. Environmental law in NSW makes the current owner responsible for the current state of the property. They may or may not have a claim against a previous owner but it’s their job to fix it.
    – Dale M
    Aug 4 '21 at 1:45
  • fyi I just had a first conversation with the neighbour. We're going to look into options on how to address. Aug 4 '21 at 4:14

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