December 31, 2022

Celebrate the Board's Accomplishments!

Happy New Year! As we celebrate the beginning of 2023, boards should also publicly celebrate their accomplishments during the past year. Enforcing rules, maintaining common areas, and keeping associations on a solid financial footing is hard work, and owners often do not recognize this. Owners are less likely to be hostile or distrustful when they are regularly informed about boards' achievements.

December 16, 2022

Washington Court of Appeals Issues Opinion Concerning Water Trespass

The Washington Court of Appeals recently issued an opinion concerning water trespass. A homeowners association and one of its owners sued a golf club and alleged that it artificially collected and discharged surface water into their property in a manner different than the natural flow of such water. The Court remanded this case to the trial court because there were issues of material fact regarding whether the golf club committed water trespass. However, it also provided a useful summary of such claims.

Water trespass may be intentional or negligent. Where the allegations concern negligence, the plaintiff must prove duty, breach, causation, and damages. The claims against the club involved surface water. Surface waters are ordinarily those vagrant or diffused waters produced by rain, melting snow, or springs. Surface water is distinct from water flowing in a natural watercourse which is defined as a channel, having a bed, banks or sides, and a current in which waters, with some regularity, run in a certain direction. Washington State has long followed the “common enemy doctrine” for addressing alterations to the flow of surface water. In its strictest form, the common enemy doctrine allows landowners to dispose of unwanted surface water in any way they see fit without liability for resulting damage to one’s neighbor. Washington State still follows the common enemy doctrine, but its Supreme Court has recognized three exceptions to its strict application because it is widely regarded as inequitable.

Under the “collect and discharge” exception, surface waters may not be artificially collected and discharged on adjoining lands in quantities greater than, or in a manner different from, the natural flow thereof. This rule prohibits a landowner from creating an unnatural conduit, but allows him or her to direct diffuse surface waters into pre-existing natural waterways and drainways. A landowner may not, however, discharge surface water through a culvert or drain artificially constructed and located apart from a natural watercourse or natural drainway. It is not permitted to concentrate and gather surface water into artificial drains or channels and throw it on the land of an individual owner in such manner and volume as to cause substantial injury to such land and without making adequate provisions for its proper outflow unless compensation is made. Under the “due care” exception, a landowner who alters the flow of surface water on their property is required to exercise their rights with due care by acting in good faith and by avoiding unnecessary damage to the property of others. Under the third exception, a landowner may not inhibit the flow of a watercourse or natural drainway by, for example, damming it.

Condominium and homeowners associations in Washington State should keep the three exceptions described by the Court in this opinion in mind when they take any action that affects the flow of water on their property.