Jamaicans waited patiently for Hurricane Melissa to make a grand entrance, but the wait wasn’t all bad because it allowed many people to make preparations for a major hurricane. What was noticeable is that most, if not all, of the preparation surrounded the purchase of food items.

Yes, we saw videos of individuals securing the infrastructure of homes and offices, but what we didn’t hear much of, if anything, was how people were ensuring that in securing their property they showed due regard for adjoining properties. Property owners do owe their neighbours what is called a ‘duty of care’ in civil law, which encompasses rights to enjoyment and freedom from nuisance. Storm water flowing from your property can be, in law, considered a nuisance.

In relation to storm water, which would be quite applicable in the midst of Hurricane Melissa, case law provides guidance on how neighbours should address the attendant issues. Firstly, there is the issue of whether the titles concerning the properties contain any restrictive covenants that address the type of fencing that they can erect as well as how to treat the flow of water across properties. Jamaica also has the Dividing Fences Act that primarily addresses issues concerning shared costs for erection or repair of fences and less to do with the issues being discussed here.

Where we find guidance is in case law, whereby decided cases have, for instance, indicated that neighbours have a right to the natural flow of water (this of course includes storm water) from their property to the adjoining property, particularly when the former is on higher ground than the latter. Note the reference to ‘natural flow’, which means it is not a right to deliberately channel water onto our neighbour’s property by altering its natural flow through the use of pipes or otherwise.

It is important to note that while this is so, the case law doesn’t place an obligation on the property owner on whose land the flow of water is going to accept said flow, and the owner is legally within his/her rights to take reasonable steps to keep this water out provided that these steps do not do more than is required to protect the property.

With that said, the court oftentimes has to examine the accompanying issue of whether the neighbour allowing the flow of water onto the other property has taken reasonable care to avoid causing harm to the other property. The use of weep holes (in concrete fences) is an often-utilised measure to handle or prevent water being backed up on one property.

To use or not to use weep holes begs the question of who has the responsibility and who has a right. The law on this isn’t exactly direct or straightforward, but some things are true. For one, the Dividing Fences Act does speak to a shared responsibility between owners of adjoining property in deciding on the type of fence to be erected and undertaking the building and repair cost of such fencing. Implicit in that is an atmosphere of shared decisions between titleholders, including whether weep holes are to be placed in the fence.

But you may ask: What if I purchase a property that has a wall already erected and there are no weep holes and my property floods when it rains? Again, the first step is a discussion between the parties. If this bears no fruit, then it will certainly be a matter for the court to settle by examining how the water naturally flows; the restrictions, if any, contained on the land titles; and any modifications that may have been done to the properties.

What is important to note as well is that the common law on the area indicates that there is no hard and fast position on the matter and it is certainly situational.

Patrice D Riley is an attorney-at-law. Send comments to the Jamaica Observer or patricerileylaw@gmail.com.