What are your legal rights, and obligations, if part of your land is affected by a landslide, slip or flood which originates on your neighbour’s land?
It is important to note at the beginning that damage to a residential property caused by landslips and floods is generally covered by the Earthquake Commission. The Earthquake Commission provides natural disaster insurance called EQCover which covers residential homes, land and contents.
Most people may not be aware that EQCover automatically applies for your home, contents and land if you have a current private insurance policy for your home that includes fire insurance (most do).
EQCover generally insures you against loss or damage from an earthquake, a natural landslip, a volcanic eruption, hydrothermal activity, a tsunami and, within limits, storm and flood damage.
Particular cover for land is limited to the land that is within your property boundary and includes:
- the land under your home and outbuildings;
- the land within eight metres of your home and outbuildings;
- the land under or supporting your main access way, up to 60 metres from your home, but not the driveway surfacing.
However, be aware that the maximum amount payable is $100,000 plus GST, plus up to a further $20,000 plus GST for damage to personal effects. You have up to three months following the natural disaster event that damaged your property to notify EQC of the damage.
Landslides and Floods
As owner of land you are entitled to expect the integrity of your land will be supported by any adjoining land. An owner of adjoining land is not legally liable for any damage caused by a naturally occurring landslip or flood.
What happens though if your neighbour does something on his or her land (such as laying drainage or excavations) which causes a landslip or flood which in turn causes damage to your property?
The New Zealand Court of Appeal dealt with such a case in Brouwers v Street  NZCA 463.
The essential facts of the case are: An outlet from a pond ran across a property owned by Mr Street. At some point in time Mr Street moved the outlet of the pond by about 30 metres, further up a slope towards a property owned by Mr Brouwers. The redirection resulted in water now flowing from the pond into a culvert under an access-way and then into a channel and through a corrugated iron water chute, which had been built on wooden trestles. The water ended its journey down a large bank into a gully filled with native bush. After a particularly heavy storm the chute, its wooden trestles, and the bank on which the structure was built, collapsed. Unfortunately, the collapse affected the stability of Mr Brouwer’s newly built home, as it had been built near the top of the bank. Unable to fulfil Council requirements so that a Code Compliance Certificate for the building could be issued, Mr Brouwer was forced to sell the property at a large discount.
After hearing a significant volume of expert evidence, the Court of Appeal held that the failure of the chute and/or the collapse of the wooden trestles had caused water to be jettisoned at the bank which in turn caused the bank to collapse. In short, the Court ruled that, by diverting the water in a non-natural way, Mr Street caused the bank supporting his neighbour’s home to collapse. Therefore Mr Street was liable for the difference between the value of the land with the house as it had been before the landslide, and the value after the landslide.
The point is a landowner should be very careful when doing work on their property which may alter the land and in doing so increase flood damage to neighbouring property.
We note, if Mr Street had not taken measures to control the flow of the water across or on his land, he would not have been liable for any natural effects of the flood on Mr Brouwer’s property. An owner of land on higher ground is permitted to allow surface water to flow naturally from the higher ground to lower land, and therefore will not be liable for floodwater flowing onto the neighbour’s land. Conversely, the owner of higher land can be liable for damage caused to the lower land, if the water flow is altered due to the placement of any structure on the higher land or by the higher owner altering the natural flow.