My Property is Being Flooded–Is That a Taking That I Can Be Compensated For Under the Constitution?

This Article is written by Owners’ Counsel of America for general informational purposes only.  It is intended to assist landowners in understanding some of the basic issues and questions that may arise when faced with a flooding of private property potentially caused by a governmental body. This Article is not to be viewed as providing legal advice or to be considered as a substitute for consulting with an experienced eminent domain, takings or property rights lawyer on the matters covered herein.

Flooding: An Issue That Many Property Owners Are Currently Experiencing

More intense weather patterns, aging and inadequate public infrastructure, stressed drainage systems, rapid and dense land development—these are some of key factors leading to increased amounts of runoff across vulnerable neighborhoods, communities, and private properties, both urban and rural.

Over the last several years, regularly occurring flood events have led to significant housing, property and economic losses across the country. When such an event happens, many landowners wonder if the government is to blame and, if so, whether compensation for injury and damage to property may be available under a takings theory.

First Try to Answer Some Basic Questions

Before a landowner can properly assess whether their private property has been taken by a flooding event for which just compensation should be paid, here are some basic questions that should be answered:

Is a governmental body (e.g. a state, county, city, town, water or drainage district for instance) involved or responsible for the flooding situation? To establish a taking for which just compensation must be paid, the party responsible for the flooding must be an entity or agency of the government rather than a private person or citizen. While a private party can also be held liable for a flooding event on adjacent properties, such claims are based on different theories of law than a “taking.”

If a governmental body is responsible for the flooding, what is the evidence that supports this conclusion? While a landowner my have an idea, a belief or an assumption that the government is responsible for the flooding, unless causation is obvious, some form of proof will be necessary to establish a taking. To develop this type of proof it may be necessary to retain a water engineer or other expert in the field of consequential flooding.

How long has the flooding problem been going on and when did the landowner become aware of the flooding? In many jurisdictions, there may be statute of limitations precluding a landowner from bring a takings claim after a certain time period has elapsed.

How severe is the flooding and how extensive are the damages caused by the flooding? An inconsequential, minimal or temporary flooding (without significant harm) event may not be sufficient to establish a taking. It depends on the facts.

Not All Flooding Comes from the Same Source

For modern takings liability, not all flooding cases are treated alike—meaning some may give rise to a takings claim, while others may not.   

Here are a few of the most common flooding complaints involving governmental entities:

A city worker who negligently ruptures a water main
A federal agency or state builds a dam that fails after a hurricane
A town’s antiquated sewage system breaks down releasing raw sewage onto adjacent properties
A new highway creates an impervious structure that releases extensive run off onto adjacent properties

Remember that every flooding situation has its own unique facts and circumstances which must be carefully analyzed before a determination can be made as to whether a viable takings claim exists.

What Are Some of the Things Courts Look For When Considering a  Flood-induced Taking?

While the law differs from state to state, jurisdiction to jurisdiction, and consultation with a legal expert is always advised, below are some of the key factors that courts may focus on in determining whether a flood-induced taking has occurred:

• a physical invasion of water on an owner’s property;
• the government’s actions cause the flooding;
• the government intends or foresees the flooding;
• one or more of the following factors is also present:

          (a) the occupation is permanent
          (b) the flooding causes significant injury or damage; or
          (c) the invasion significantly interferes with the landowner’s possession or use and enjoyment of the property

What Are Some Things Landowners Can Do When A Flood Event Occurs?

As soon as the flooding event occurs on your property, investigate the situation to gain an understanding of the nature, extent and cause of the flooding, and if possible, the responsible party

Document and record each flooding event and the resulting damage or injury to your property by taking contemporaneous notes, photos, video etc. Having one or more witnesses present to corroborate what is occurring can also be helpful.

Contact the governmental body responsible for the flooding event and put them on notice. See if you can get someone to come out to the property and survey the flooded area.

Determine whether damage from flooding is covered under your homeowners policy? Depending upon what your policy says, you may wish to contact your insurance company. 

Find out if your property is in a flood zone or flood hazard area and what that may mean in terms of the flood event.

If you believe you have experienced a flood-induced taking event always  consult with an experienced eminent domain or property rights attorney about your rights and what other steps you should be taking to preserve your takings claim.