Water Damaged Property? What to Know About a Recent Court Decision
Water damage can be a devastating part of property ownership. Real Estate is typically an investment that is intensely personal – given the cost and connection to where we live and what we own. Any loss of photos, mementos, or actual real property is difficult (and expensive) – with death or injury looming as a possibility in certain cases.
Nonetheless, pursuing relief via the courts for water damage is rarely straightforward. Under Virginia law, a party can pursue a claim for nuisance, trespass, or negligence (among others) when the cause of the water damage is due to the acts of a private property owner (or contractor/developer). Claims against neighbors or developers should be quickly investigated so that any claims can be timely pursued as a time limit may preempt a claim altogether. For example, the statute of limitations for negligence (in Virginia) is only two years.
Claims against the government for water damage are recoverable if they satisfy the requirements for inverse condemnation pursuant to Article I, Section 11 of the Constitution of Virginia. The Court of Appeals of Virginia recently reiterated the requirements for an inverse claim in Town of Iron Gate v. Simpson:
(1) the existence of owner of private property or some right attached thereto;
(2) that the property or right connected to that property has been damaged or taken by a body with condemnation authority;
(3) that the taking and/or damaging was for a public use; and
(4) that the government body failed to pay just compensation.
In Iron Gate, the property owner alleged that the government’s operation of stormwater pipes on their property caused water damage that necessitated monetary compensation. The trial court agreed and granted them just compensation as well as attorney’s fees (which are recoverable in inverse cases). The government appealed, alleging that the property owner failed to demonstrate a public use associated with the flooding – while also failing to mitigate the damage associated with her property by refusing an easement offered by the government as a deed of gift (among other claims).
The Court of Appeals disagreed and upheld the trial court’s decision, noting that while there is a duty to mitigate damages, the property owner’s choice not to accept the government’s easement was not a failure to mitigate but instead a choice to reject a pending settlement offer. The Court further opined that the property owner’s claims that the government intentionally used her property to operate its stormwater management system were sufficient to satisfy the public use requirement of an inverse condemnation claim.
The Court’s decision in Iron Gate reinforces the Court’s strict requirements associated with claims against the government while demonstrating that relief (including significant attorney’s fees) can be possible if a causal connection can be made in water damage cases. I recommend that parties seek legal counsel if they are navigating a potential water claim against the government or private party. A well-thought-out strategy at the outset can save time and resources in the long term.
Feel free to reach out to me at tringham@kramerelias.com or (703) 202-7633 to discuss your property damage concerns or any real estate matters that you might have.
Theodora Stringham focuses her practice on bringing solutions-oriented representation and zealous advocacy to complex issues impacting individuals, organizations, and businesses. Ms. Stringham’s approach focuses on understanding clients’ concerns and providing them with thorough and detail-oriented approaches/options to advance their goals. She has been recognized for her advocacy in the Real Estate and Labor and Employment fields, providing counseling for a wide variety of Real Estate and Labor and Employment concerns.