Flooding issues from neighbouring land

Our Real Estate blog addresses a range of property issues for homeowners, landlords and tenants in Scotland.

If your land is flooding during heavy rain as a result of water flowing down from neighbouring land – what is the legal position and can you do anything to stop this?

There is a general common law principle in Scots property law that water which arises naturally, whether from the sky or from neighbouring land, is permitted to drain with the natural slope of the land. That means that you have to accept the water draining down from your neighbour's property if that water has arisen naturally. You are entitled to protect your own land from flooding, for example by arranging appropriate drainage within your land. However, you would not be permitted to obstruct the flow of water to the extent that it results in flooding your neighbour's land. This could, in certain circumstances, lead to a claim against you in respect of loss or harm suffered by your neighbour in relation to their property.

However, you do not have to accept a greater quantity of water on your land than that which arises in the course of nature, apart from where your title deeds specifically provide for this. It would be worth checking with your solicitor that your title deeds do not contain any specific provisions that would allow your uphill neighbour to drain additional water onto your property beyond the common law position, as set out above.

Something you may wish to consider is whether the flooding has been caused by the actions of your neighbour. For example, if your neighbour has carried out works to their property which has resulted in an increased flow of water from their property to yours, or has diverted the natural course of the water flow, causing damage, you might have a claim against your neighbour in respect of the loss or harm suffered by you in relation to the damage caused to your property.