Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #66 • March 2011
Landslides: Nuisance or Construction Defect?
by Tyler P Berding, Esq.
As I write this, northern California is experiencing the second straight week of rain in an otherwise very wet year. Continuous rain soaks the ground and loosens unstable hillsides. Landslides can stay hidden for years until excessive moisture suddenly breaks them loose. Also, slides can move very slowly, over long periods of time, gradually damaging the properties around them.
In either case, earth movement can cause serious damage to buildings and other improvements on or adjacent to the unstable land. Mudslides, rockslides, and landslides are all versions of the same phenomenon—water plus gravity equals damage.
We've seen slides gradually pull down the surrounding properties so slowly that trees growing on the hill have curved trunks. This is called soil creep and can last for years or decades. We've also represented clients whose homes were damaged in just a moment as a large landslide, hidden beneath the surface of the earth for centuries, comes down, bringing a large portion of the hillside with it.
Property developers are required to obtain the advice of soil engineers when grading is done in a landslide-prone area, and most engineers are very good at detecting the presence of hidden slides. Aerial photo mapping, boring, or just reviewing the history of the area under development can do this. But regardless of the engineer or developer's efforts, slides can still occur.
Earth Movement as a Construction Defect.
If a slide occurs in a development after construction is complete and the homes are sold, the developer is liable for any damage caused for at least ten years from the completion of the project. Slides, subsidence, settlement, and improper drainage are all considered construction defects. Arguments in those cases usually do not arise over who is liable—the developer and its contractors are usually “strictly” liable or negligent if a slide occurs on newly developed land. What the attorneys for each side usually debate is what is necessary to repair the damages and how much that will cost.
Berding|Weil Q&A of the Day
Our community association has a lot of hillside common area and a big slide just occurred on part of it. The slide damaged a couple of the homes in our association. Who is responsible for that damage?
If you are talking about a development of single family homes on separate lots which are adjacent to the common area, it will depend on whether the slide originated on common area or on one or more of the damaged lots. That may take the services of a soils engineer to determine. However, if the project is less than 10 years old, the original developer may be legally liable for the repairs. Check with your association counsel for help in determining whether there is still time to file a claim.
A storm drain backed up in the last storm and flooded the common area of our association. Is the city responsible for the damage?
Maybe, under a legal theory known as Inverse Condemnation. But it may depend upon who is responsible for maintaining the storm drain system. It could be the city, or another utility, or even the association itself. The governing documents of the association should be reviewed preliminarily to see if any of the maintenance responsibility lies with the association--especially if any part of the storm drain system is on the association's common area and not on city property. The public records should also be checked for maintenance easements that might hold the city or a special district responsible for the entire system.

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