Pond Runoff Can Leave Associations in Hot Water for Far Longer Than They Expect

Many communities are developed with detention ponds, and associations rarely give them a second thought. When they do, they probably figure any problems are the developer’s problem. This week, we explain why this kind of thinking can lead to some unpleasant, and costly surprises long after an association might think it could be held liable.

The property of the Traditions of America at Liberty Hills Condominium Association includes a detention pond built in 2007. In 2013, Brian Kowalski, who owned property downhill from the pond, sued the association over the pond’s runoff. He alleged that the runoff overwhelms the storm water pipe and causes flooding on his property.

“If the water would have otherwise flowed there anyway from natural consequences,” explains Daniel Miske, a partner in the Milwaukee, Wis., law firm of Husch Blackwell LLP, “there would be no liability. In this case, the buildings, the blacktop, and the cement increased the flows from rains.”

Kowalski’s breach of contract and negligence claims were dismissed before trial because the statute of limitations for such claims had expired, but his trespass claim went to trial. After the trial court ruled in favor of his trespass claim, the association appealed, contending that claim also was barred by the statute of limitations.

To find out why the court of appeals ruled for the owner in this case, check out our new article Ponds Can Mean Lingering Liability.

Best regards,
Matt Humphrey
President