Stormwater Discharge Damages: Who Pays the Bill?

Land is developed. The developer creates the lots and, either directly or through other builders, builds houses on them. Soon, homeowners purchase their dream house. They keep their yard beautifully landscaped and clean. They keep their home in an impeccable condition. After some time, the rain comes. Out of a sudden, stormwater pours over their lot, causing significant damages—tens of thousands of dollars in damages.

Without hesitation, the homeowners get contractors to “fix” the damages. Confident in their position, the homeowners send the invoice to their homeowners association demanding payment. To their shock and anger, the homeowners association directs them to the documents governing the community, as well as local ordinances.

Most of the time homeowners associations do not bear responsibility for damages resulting from stormwater discharges from the systems installed by the developer or the builders. Unless such responsibility is expressly turned over by the developer to the homeowners association (in recorded documents) and unless the homeowners contend defective installation by the developer or builders, the homeowners should review the local stormwater ordinances.

Remember, the common test for determining whether a homeowners association is responsible for an expense is: Is the Expense One that Is Common to All Owners and Attributed to Budgeted and Collected Assessments?