From: Ross C. Heim [[email protected]]
One of my clients has a slight problem.
He just bought a new home a month ago and was somewhat surprised to find that part of the backyard floods during rain storms. The flood plan for the entire neighborhood is designed to lead to his property, i.e., the drainage plan for the neighborhood (there are no sewers) allows the rainwater to flow into gullies that lead to a pipe the goes under the road onto his property, intending ultimately to feed into the creek at the back of his property. Over the years the property has apparently flattened out such that the water does not go to the creek but, instead, ponds on his property.
First question: Did the seller have an affirmative obligation to disclose that flooding? Incidentally, the creek overflows significantly during heavy storms which also was not disclosed.
Second question: Does the city have any obligation to help remedy the situation? The city manager visited with the homeowner and was very sympathetic but denied any responsibility, claiming that the homeowner could re-grade the property from the pipe to the creek so that the water would flow into the creek rather than flood.
Any suggestions?
Ross C. Heim
Attorney-at-Law
1014 Cumberland Court
Vernon Hills, IL 60061
847-816-6180
Fax: 847-816-6185
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If they have a Homeowner's Association (which most of the subdivisions around here do), then I would check with them to see if the drainageway for the subdivision falls in a drainage easement. If so, then the HOA would be responsible for fixing the grading in the homeowner's yard.
Unfortunately, I have a good amount of experience with this kind of thing. When we purchased our house 5 years ago, the subdivision had and artificial rill (small creek) running through the subdivision in lieu of underground sewers. Bad design; hardly any pitch throughout the sub (which was a former cornfield) and bad construction. We moved in early September, and the rill was under "repair" when we looked at the house and moved in. We moved in, they turned on the pumps (water source was a park district pond) and my sump pump, as well as my neighbors, was going off every 1-2 minutes. I raised he!! and they finally turned the thing off. I informed the HOA that the landscape contractor had used filter fabric instead of PVC liner to line the thing. Burned out 3 sump pumps the first year.
To make a long story short, the HOA ended up removing the rill system after 3 years and many complaints and installed swales to help the system drain better; i.e. instead of pumping water in, we just let nature do it's thing. It's not perfect due to the flatness of the land, but for the most part it's OK.
Why is an attorney asking a surveyor legal questions?
After I said short answers of no to both questions, I'd be inclined to remind him to ask his client if they know how to spell "due diligence". Sometimes, just maybe, only a suggestion... a buyer needs to ask those questions prior to purchasing things.
Things like flood plain, drainage easements, maintenance agreements, assessments, etc all come to mind.
Exactly what I was about 2 say!!!!
> Why is an attorney asking a surveyor legal questions?
>
> After I said short answers of no to both questions, I'd be inclined to remind him to ask his client if they know how to spell "due diligence". Sometimes, just maybe, only a suggestion... a buyer needs to ask those questions prior to purchasing things.
>
> Things like flood plain, drainage easements, maintenance agreements, assessments, etc all come to mind.
In North Carolina that could be an omission of a material fact by the Broker.
See this page from the NC Handbook...
NC RE Handbook page 481
Charge them extra for waterfront.
>
>
> He just bought a new home a month ago and was somewhat surprised to find that part of the backyard floods during rain storms. The flood plan for the entire neighborhood is designed to lead to his property, i.e., the drainage plan for the neighborhood (there are no sewers) allows the rainwater to flow into gullies that lead to a pipe the goes under the road onto his property, intending ultimately to feed into the creek at the back of his property. Over the years the property has apparently flattened out such that the water does not go to the creek but, instead, ponds on his property.
>
> First question: Did the seller have an affirmative obligation to disclose that flooding? Incidentally, the creek overflows significantly during heavy storms which also was not disclosed.
>
> Second question: Does the city have any obligation to help remedy the situation? The city manager visited with the homeowner and was very sympathetic but denied any responsibility, claiming that the homeowner could re-grade the property from the pipe to the creek so that the water would flow into the creek rather than flood.
>
> Any suggestions?
>
>
I would think it would depend how bad the flooding was.
Did it dis-allow access to his house or outbuildings?
Did it cause flooding in the basement?
Was the entire lawn area flooded or could he still go out and grill some steaks in the back yard?
I would tend to think it's a case of Buyer Beware as it would normally be obvious if there was a big depression in the back yard with no outlet and a pipe running into it.
Maybe he should pay more since he now has waterfront? May people pay 10's of thousands of dollars to have a pond. Stock it with catfish.