Basic Legal Propositions: Flooding and Landslides
Recent weather events have produced some horrific stories that none of us would wish to encounter, with the consequences of the damage to be felt for many years. We thought it useful to set out some basic legal propositions to help you through this minefield. Of course, while summer may have finally arrived, the clouds still hold water and rain won’t stop falling; and natural landslip events will occur into the future as well.
Waterflows
Generally, an uphill landowner is not responsible for water that naturally flows downhill that causes damage to the downhill land. This may not apply, and the uphill owner may be responsible, if that uphill owner alters the natural flow by diverting water onto the neighbour’s property through changes to the gradient of the land, or through some other non-natural use of the land. Generally, the downhill owner is responsible for drainage on their own land to mitigate any damage resulting from natural water flows.
Slips and Stability
These issues can be complex and fact-dependent and general principles only are provided.
If land or a building has been damaged because of a landslide on other land, generally the owner of the damaged land is responsible for repairing their own damage. There is not an automatic liability on the neighbour whose land has slipped. However, if the slip resulted from some form of negligence by the neighbour on their land, or some use of their land that is causative of the landslide (and engineers will undoubtedly have differing views on the cause) then the legal principles of nuisance and/or negligence could apply. Sometimes in these situations, insurers could refuse responsibility if the insurer considers the landslide is the result of a gradual process and not the negligence of a neighbouring landowner. Insurers insure against the risk of accidents, and if the event is not considered an accident, then there may not be insurance cover. This is where EQC steps in - The Earthquake Commission. If your property is insured, part of your premium will go to EQC to allow it to fund claims arising from natural disasters. These include earthquakes, landslips, tsunami and even flood and storm damage.
However, EQC claims come with a maximum amount payable – a cap. If the cost of the damage exceeds the cap, the property owner needs to look elsewhere to fund the difference, potentially their insurance company (if they accept the claim) and/or the owners’ own funds. Residential buildings have a cap of only $150,000.00 + GST, or the lesser sum in your insurance policy for your building insured under the Earthquake Commission Act. There is a different calculation for the land component.
Property owners also have a legal right of support for their land in its natural state. This does not mean a neighbouring property owner has an obligation to stabilise your land, it is more that a duty can be imposed not to remove support that is already present.
Finally, if you own property, you have a general duty to prevent or mitigate damage to a neighbouring property arising from a hazard that you are aware of on your land. This applies in many circumstances and is not merely limited to the risk of slips – it is any non-natural use of your land.
All of the above is a complicated area with parties having cross-duties and obligations to mitigate any financial loss as much as possible.
Red and Yellow Stickers
What do these mean?
These demonstrate the outcome of a building assessment. A red sticker means the building is dangerous and must not be entered. A yellow sticker indicates the building, or part of it, is potentially dangerous and may include some restrictions or rules around entering it or using it.
Both red and yellow stickers are formal notices under the Building Act 2004 and cannot be removed. It is an offence under that Act to damage, alter, remove or interfere with these stickers. It is also an offence to intentionally occupy a building in breach of a sticker.
Residential Tenancies
There are obviously issues with commercial properties as well as residential, but generally, a commercial lease and the law around commercial leases, provides more certainty for both parties than residential tenancies does.
Residential tenants must notify the landlord as soon as possible after discovery of any damage to the landlord’s premises. Landlords are responsible for maintenance of their own property and this does not change in the event of a disaster such as flooding or other like matters. However, tenants are responsible for their own property within the dwelling.
If a rental property has been partially destroyed or are so seriously damaged so as to be uninhabitable, then the rent payable is abated and either party can give notice terminating the tenancy. If the dwelling is not uninhabitable, the rent is still abated but there is no automatic right to terminate the tenancy – this is a decision for the Tenancy Tribunal. In terms of the term “uninhabitable”, each case must be considered on their own facts, but having regard to the circumstances of the tenants, which essentially means what is uninhabitable for one group of tenants may not apply for a different type of tenant.
For further Property Law advice, get in touch with Nick and the Property Law team.
nick@davenportslaw.co.nz | 09 883 4420
