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Ask Barrister Your Own Question
Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 36642
Experience:  16 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 26 yrs
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We had a storm on May 30th that resulted in the construction

Customer Question

We had a storm on May 30th that resulted in the construction site next to us becoming like a mini landslide. Our pool turned green and ended up having to be dumped and ultimately we ended up needing a new liner. We are out around $5,000 before considering our time, aggravation and potential legal fees should we have a case. We have supporting documents and we are just looking to see if we have any recourse?
Monica Ottinger ***@******.***
Submitted: 10 months ago.
Category: Legal
Expert:  Barrister replied 10 months ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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Was this an unusual amount of rain for the area?

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Is it your contention that the builder was somehow negligent in maintaining his soil on his property so it didn't slide onto yours?

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Did the soil from the builder's lot slide into your pool?

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Is your homeowner's insurance covering any loss or costs of clean up and repair?

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thanks

Barrister

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Customer: replied 10 months ago.
Hi, thank you for your time.It was a heavy storm with over an inch and a half of rain in short time.There was no retaining wall and his property is above ours and our neighbor directly below is also had damage.We did not see the dirt physically go in our yard but our neighbor's sit lower than us and they had a mini landslide from the same property. Multiple water tests and professional opinions say the only way to achieve the levels of phosphates and metals found in our pool would be dirt or certain types of seeds used for grass.We did not use our home owners insurance. We weren't sure this would be covered or if we even should.I will be heading to bed now so I apologize for the delay in our conversation. I look forward to continuing tomorrow.Thank you,
Monica
Expert:  Barrister replied 10 months ago.

Ok, whether you would have a claim against them would depend on whether 1. they were doing their building in a normal fashion and this was an unusually high amount of rain, which makes this an "Act of God", or 2. whether they were negligent in some way in maintaining their landscape, this wasn't a high amount of rain, and you can prove that their actions caused your damages.

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To be honest, if this was that much rain in a very short time, and you can't show that the builder was acting unreasonably with his landscape, if this got to a court, a judge/jury would likely find that this was an Act of God so both parties would bear their own damage costs..

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I am very sorry that I don’t have better news, but please understand that I do have an ethical and professional obligation to provide customers with legally correct answers based on my knowledge and experience, even when I know the answer doesn’t make the customer happy...

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thanks

Barrister

Customer: replied 10 months ago.
I completely understand.
The site was not graded properly so getting just shy of 2 inches of rain in only a few hours turned his site into a mud slide. There was supposed to be a retaining wall and there is none. This would not have happened had he graded his land and had the proper structures up to avoid flooding his lower lying neighbor's. It's an unfortunate and quite expensive lesson to learn. I'm not sure how his negligence is indirectly protected by " an act of God" if he didn't build his structure properly or with the necessary safety precautions in place. It is quite dissappointing.
Thank you for your feedback. It is greatly appreciated.
Expert:  Barrister replied 10 months ago.

If he didn't properly grade his land, and you can prove it, then that makes a big difference.. If he basically set up the scenario to where a large rainfall could cause your damages, the a judge may look at this as him being "contributorily negligent" and assign some percentage of blame to him.

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The problem that jumps up at me is you said that you didn't see his soil/mud enter your property/pool. . I was imaging a pool that had an inch of mud at the bottom so it is easy to determine the cause. But if you didn't remove a large amount of soil from the pool filter, then we are back at the point where you would have to convince a judge by your testimony and that of your professionals that something from the neighbor's land entered your pool to cause the water to turn green and cause the damages. If it was just water that ran from the neighbor over and picked up chemicals and contaminants and ran into your pool then it comes back to being closer to an Act of God due to the extreme rainfall.

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The bot***** *****ne is that you could have an attorney send a demand letter threatening to sue if they didn't pay your damages, and then actually sue in small claims court if they refused, but I think it would be a coin flip how the decision went.

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But merely by filing suit, you would force the builder to hire an attorney for several thousand to defend, so he might just settle rather than have to go through that if you sent him a demand letter from a local attorney..

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thanks

Barrister