PREVENTING, PLANNING FOR, AND MANAGING FLOOD EVENTS IN YOUR COMMUNITY

• By: admin
• On: 12/06/2023 16:35:30
• In: Ordinances & Rules | City/County

When first constructed or modified, rental spaces should be engineered to protect homes against flooding. Typically, rental communities and individual spaces are engineered to protect against a 100-year storm event (i.e., a 100-year flood). A 100-year storm event is one that statistically is likely to occur only one out of every 100 years on average. Notwithstanding the foregoing, it is not out of the question to see 100-year storm events occur much more frequently. This could be due to random storms, outdated storm data, climate change, and other factors. During the past 10 years alone, I've observed some 500-year storm events in parts of Arizona.

When most communities were originally constructed (or substantially modified), a grading and drainage plan prepared by an engineer would have been required by the governmental entity that approved the development. Check whether you have that document, as it could be very helpful in the future. If you do not have that document, check with the applicable building authority to determine whether they have it on file and get a copy of it for your records. However, some older communities may have been developed without such engineering, placing them at greater risk of flood potential. In such cases, obtaining an engineering study now is a wise idea, as it will identify potential problem areas and methods to responsibly address them.

Even innocent acts (changed landscaping, a shed, a berm, etc.)  can negatively affect drainage and result in flooding and water damage.    Because the risk of flooding is ever present and the consequences can result in significant property damage and liability, your rental documents should address important water-related conditions such as: prohibiting tenants from unilaterally modifying their spaces or changing the landscape or grading; prohibiting tenants from acts or omissions that interfere with the ability of their space to either retain stormwater or appropriately drain it; requiring tenants to properly maintain any drainage facilities on their spaces (ditches, swales, etc.); prohibiting tenants from modifying or blocking drainage facilities on or adjacent to their spaces; and other elements that may be present in your community. The rental documents should also inform the tenants that they may be responsible for the consequences of any such violation, such as resulting flood damage to their home or neighboring homes and spaces, the landlord's property, etc. If a tenant violates the foregoing policies, promptly issue a Violation Notice and insist that the premises be restored to its original condition unless an engineer evaluates the condition (and prepares a report) to ensure that the changes will not negatively impact the drainage and increase the potential for flooding.

When tenants seek to modify their home or space in a manner that could affect water retention or drainage, landlords should require them to obtain a report from an engineer providing appropriate direction on how to execute the modifications and confirming that the proposed modifications will not have an adverse effect on the drainage conditions.  If a tenant violates the foregoing, promptly issue a Violation Notice. As a landlord, pay attention to what is happening on the spaces in your community and maintain a photo diary of each space so you can, if necessary, document the current condition and compare it to any future (changed) condition that might be made by a tenant without your knowledge.  This can be very helpful evidence if there is a future flooding event and victims point fingers at the community owner.

If you as a landlord modify any of the property within your community, also make sure to have an engineer ensure that the modifications will not adversely affect the drainage or increase the risk that homes and spaces may be adversely affected by a significant rain event. It is surprising how even a minor modification can result in significant adverse drainage problems and flooding.

If any portion of your property is within a designated floodplain, it must be engineered to address that condition. Your rental documents should disclose the existence of the floodplain and require tenants to set their homes at a properly engineered elevation, so they are outside (above) the designated flood height. In most locations, the local governmental development department will require this for newly installed homes. 

If your community is in an area that is susceptible to flooding or if you have ground-set homes, you should periodically recommend to your tenants that they consider obtaining flood insurance. As a landlord, you should also confirm with your insurance carrier whether you have flood insurance for your community, as well as liability coverage in the event your staff undertakes actions that result in flooding of tenant's spaces or homes (if such coverage is available).  

If a flood event should occur in your community, it is extremely important to immediately document the situation with appropriate photos and videos, and possibly even get an engineer to assess the situation, as the documentation might serve as evidence to protect you if any flood damage occurs through no fault of yours and a claim is brought against you. This is particularly important if the flood or flood damage resulted from the act or omission of others, whether it be a neighboring property, a tenant, a contractor, or others. You should also immediately consult an attorney, as gathering incriminating evidence or the wrong type of evidence could result in liability exposure for you. As attorneys, we can have our “investigators” examine conditions and such information may not necessarily be discoverable by an adverse party should it turn out that the problem was the result of your act or omission. Your own insurance carrier may also need to be notified, but again, immediately seek legal advice on that issue.

Depending on the conditions that are present in your community (on-space water retention, off-site drainage, etc.), periodically remind tenants in a newsletter or posting about their responsibilities relating to water conditions, that they are not to modify their spaces or improvements without the landlord's consent, that they should consider flood insurance if they have any flood concerns (such coverage is not included in a standard homeowners insurance policy), and noting any specific provisions of your rental documents that apply to modifications of rental spaces. A standard article or posting, issued annually, is a wise protocol.
 --------------------------------------------------------------------------------------------------------------------------------------------- The content of this article is for informational and educational purposes only and should not be considered as rendering legal advice. Subsequent changes in the laws could materially affect the opinions contained in the article. Current legal advice should always be sought on any particular matter.