Drainage of Water

THE COMMON LAW RULE AND WHY THIS CASE IS IMPORTANT

The general rule in our law is that lower lying properties are obliged to accept water from higher lying properties. This may seem very simple but as this case explains there is more to this issue.

THE FACTS

In this matter the two parties purchased vacant land in an estate next door to one another. The properties slope in such a way that one property is higher than the other. The owner of the higher lying property, owner A, built on his stand some time before the owner of the lower lying property, owner B.

Owner B built his house in 2003 together with a swimming pool leaving only about 30% of his stand to garden and lawns. Towards the end of 2003 owner A noticed water was damming up against the common boundary wall and he approached his neighbour to see if it was possible to breach the wall to allow the water to flow out of his property over owner B’s property. The parties could not agree on the matter and lawyers were approached.

Owner A argued that owner B was obliged to accept water from his property based upon the fact that his property was higher than owners B’s property. Owner B however responded by saying that owner A had to show that the water he was insisting he accept would have flowed on to his property naturally.

WHAT THE COURT CONSIDERED AND WHAT THE COURT HELD

In the court which first heard the matter the court held that owner B was obliged to accept the water from owner A’s property. The matter was then taken on appeal and a decision was made taking into account various factors.

On appeal the court stated that there is a common law principle that lower lying properties are obliged to accept water that would have flowed there naturally from higher lying properties. However the obligation to accept the water is limited. Due to development of properties it is not possible to determine what water would have flowed naturally (in respect of quantity and locality) over the lower lying property. In addition a lower lying property is only obliged to accept water from a higher lying property (other than what would flow there naturally) if there is a registered servitude to that effect.

The owner of a property is obliged to take steps to minimize any damage that may be caused to his and his neighbour’s property due to increased water flow as a result of building on an erf. In this case the city council in its consent to subdivision had inserted a condition that should lower lying properties be obliged to accept water (where it is not practical to drain the water directly to a public street) from higher lying properties the owners of each erven will jointly share the cost of a pipeline to discharge the water.

The court therefore granted the appeal on the basis that there was no proof that the water owner A wanted to discharge over owner B’s property would have flowed there naturally and the fact that the erven had been developed meant that not all of the water would have flowed naturally over the property. There was also no servitude to oblige owner B to accept the water and the city council had specifically stated that lower lying erven are only obliged to accept water where it is not practical to drain it elsewhere and in this case both properties had direct access to a street to discharge the water. All of these arguments were in favour of owner B and the appeal was granted.

CONCLUSION

Lower lying erven are not obliged to accept water that would not have flowed onto the land naturally unless there is a servitude registered in favour of the higher lying property.

Source: SCHINDLERS ( attorneys – conveyancers – notaries ) PAPPALARDO v HAU (63/08) [2009] ZASCA 160

Courtesy: EAAB - The Estate Agency Affairs Board