Q: A member of our homeowners’ association believes he does not have to follow our subdivision’s covenants, conditions and restrictions (or CCRs). He filled in the natural depression of the drainage ditch in his back yard to level the area. He then built a catch basin at his property line where the natural water flow would normally have gradually drained onto the adjacent lot, and installed drain tile trenches that all empty into a catch basin.
Now during heavy rains, his neighbor has rapids over 4 feet wide and sometimes over a foot deep eroding away his yard.
He never requested approval of this change from our HOA’s architectural review board, and he never requested permission from the city’s Storm Water Services department or the erosion inspector.
This has been going on in stages for three years, but is now causing major damage to lots downstream. He laughs when you tell him to tear it up or start being fined. What can we do?
First, read the CCRs carefully to determine whether the alterations required prior approval of your architectural committee.
Some older CCRs do not have any architectural review and approval procedures; others require approval only for certain changes or additions to the home itself; others require the submission and approval of detailed plans before a change or addition can be made to virtually anything located within the lot boundaries, including landscaping and drainage.
Some CCRs even have restrictions that expressly prohibit owners from altering the drainage on their lots.
If you have identified a specific provision in your CCRs that this owner has violated, follow the procedures outlined in your CCRs for dealing with violations. If there are none, the North Carolina Planned Community Act has a “default” procedure for conducting hearings and levying fines against owners for violations of the community’s CCRs, bylaws or rules and regulations.
Those procedures are set forth in N.C.G.S. § 47F-3-107.1, which can be found on the General Assembly’s website: http://www.ncga.state.nc.us/gascripts/Statutes/Statutes.asp (search for Chapter 47F).
The “downstream” neighbors whose lots are being damaged by this unnatural runoff may also have a legal claim against the responsible owner for trespass and damage to property. I would liken the situation to someone who rakes all of the leaves from his yard and dumps them over the fence into his neighbor’s yard. The affected owners should consult with a real estate or civil litigation attorney to explore their options.
You could also contact the city’s storm water or erosion control divisions to see if this presents issues with local codes.
Charlotte attorney Michael Hunter represents community and condominium associations for the firm of Horack Talley.
“Ask The Experts” Articles have been Reprinted with permission from the Charlotte Observer
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