Storm Handling Storm Damage to Property

BY PETER PROWS

California’s epic parade of storms this past winter has caused billions of dollars – and counting – of flood, rain, and wind damage to properties across the state. Both the state and the federal government declared much of California to be a major disaster area. When the storms finally passed, property owners and managers were left to dry out, pick up the pieces, and try to better protect their properties against the next storm – while navigating sometimes complex laws that can confound the rebuilding process.

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Addressing Immediate Storm Threats

Property owners and managers will first want to ensure their properties are secured against immediate threats to life, safety, or property. Smaller fixes, such as placing sandbags in entryways or pumping out floodwaters, can usually be implemented immediately without any permits. But some fixes will be more legally complicated.

If significant construction work is required to shore up or patch a structure, building permits or other approvals from the local building department may be required. Building permits for emergency work can usually be applied for after the work is undertaken.

If the emergency work involves any kind of work in sensitive environmental areas – such as streams, wetlands, or beaches – state and federal law may require that permits be obtained before or shortly after the work is done to avoid the risk of civil or even criminal prosecution. Exactly where and what kind of work is undertaken in sensitive areas can make a big legal difference in the types and timing of state or federal permits required. For example, if the threat of flooding from an eroding creek bank requires repair work below the mean highwater mark, time-consuming and expensive permits from a long list of state and federal agencies may be required first. But if the emergency can be addressed by work above the mean high-water mark or even above the bank, such as with temporary upland berms, then the work can often be performed right away, likely without any permits and perhaps only minimal, if any, after-thefact notifications provided to the regulatory agencies.

Preparing for the Cleanup

Once any immediate threats are resolved, property owners and managers are likely to turn their attention to rebuilding. The rebuilding process usually starts with surveying the damage. Property damage should be carefully documented with photographs. If damage to personal property, such as vehicles or jewelry, has occurred, documentation should be gathered of the value of that property, with receipts if possible.

Property or flood insurance can help cover the repair costs of many types of storm damage. Insurance policies should be consulted closely, with special attention paid to any deadlines or requirements for making insurance claims. Insurance claims should be documented with photographs and other evidence of the damage. Care should be taken in how any insurance claim, as well as other communications with the insurance company, characterizes the damage, so as not to jeopardize the chances that coverage is provided. Many policies cover damage from water intrusion but not flooding, or from fallen trees but not mere wind.

Filing an insurance claim under any applicable policies is also a prerequisite to obtaining any available federal disaster relief assistance, including repair or relocation assistance.

Damage to property caused by the negligence of others may also be recoverable. For example, storms can reveal latent construction defects, such as substandard sealing or drainage, for which the builder might be held responsible. A property owner who negligently maintained trees or limbs that fall and cause damage to another person’s property in a storm can also be held responsible.

Public agencies, homeowners associations, and others with responsibility for maintaining community improvements may also face potential liability should those improvements fail in a storm and cause damage. A flood-control district, for example, with a levee failure during a storm that the levee was designed to withstand may be held responsible for the damage caused by the breach. (Public agencies, including flood-control districts, may also benefit from statutes of limitations that can be as short as 90 days for certain damage claims; claimants should be mindful of this.) Entities facing claims of potential liability for failures of their community improvements should ensure that they report any claims made against them to their insurance carriers.

The Rebuilding Process

Repairing newer structures with only minor to moderate storm damage usually presents few, if any, legal obstacles. Complications may arise, however, in rebuilding from more significant damage, especially to older structures, or when the repair requires any kind of work in the coastal zone or in environmentally sensitive areas.

Older buildings generally do not need to comply with laws

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