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Irwin Law
Irwin Law, Lawyer
Category: Real Estate Law
Satisfied Customers: 7155
Experience:  Lawyer- Broker 30+years - foreclosure, short sale, liens, title attorney.
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I live in NC. We recently purchased a property in Charlotte,

Customer Question

I live in NC. We recently purchased a property in Charlotte, NC for the purpose of constructing two new homes. When we met with the Architectural Review Board for the neighborhood, several of the members told me we must address drainage issues regarding water flowing from our property to the neighbors, whereby flooding occurs during heavy rains. They suggested we construct a 200' long brick wall at the downside of our property to divert water down my lot line to the street. They are adamant that this must be done. I think holding over my head permission to build. The grade has never changed since our house (came with the purchase) was built in the early 1900's. My lots happen to be at the highest point in the neighborhood. The other suggestion was to construct a swale the entire length of our property to divert water again to the street. There is very little slope to the yard, probably around 2 %, and I'm concerned about flooding and erosion on my property if this is done. as well as possible undermining of the footing of the home we will be building due to the proximity of the swale to the foundation, about 2' away. What are my and their legal obligations ? Thanks, ***** *****
Submitted: 7 months ago.
Category: Real Estate Law
Expert:  Irwin Law replied 7 months ago.

It would be unusual for an Architectural Review Board (of a HOA) to have that kind of legal authority. You would have to review the bylaws of the Association and the plat restrictions, if any, to see exactly what authority they have. Usually the building permits are issued by the County planning and zoning departments, not neighborhood homeowner associations. You may need the services of both an attorney and a landscape architect or engineer to solve this problem.

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Customer: replied 7 months ago.
Actually looking more for basic rules covering the responsibilities of higher land owners and lower land owners when it comes to liability for rain water. Is the higher ground owner liable to reduce the rain flow on to the lower land owners property. I understand that the lower land owner must accept the runoff from the higher land owners property and do what he must to handle the flow. Correct ? Please elaborate.
Expert:  Irwin Law replied 7 months ago.

I understand that the lower land owner must accept the runoff from the higher land owners property and do what he must to handle the flow. Correct ?

That is basically correct and it is the traditional rule regarding surface water runoff. Two observations: First, this issue is governed by state law, so a North Carolina attorney will have to research the most recent state court decisions on the subject; second, this rule of law has, in many states evolved and been modified to a more equitable view point where owners of upper land, such as yourself may be required to take reasonable steps to mitigate the effect of their use of the property on the lower landowners.See: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1863&context=facpub . The question being, what do NC courts consider to be reasonable? This is why I say that you will probably need both an attorney and a landscape engineer.

Expert:  Irwin Law replied 7 months ago.

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