Liability of Municipalities because of heavy Rains, Backwater and uncontrolled Run-off of Precipitation – Part 1

Abstract

Heavy rains occur more frequently over the past years, damaging land and property through backing-up in canalisation and uncontrolled run-off. The landowners claim for damages against the municipalities, whose drains and sewage systems aren’t constructed to cope with these so-called „one-hundred-year“ rain events. Their claim for property damage in those cases is principally based on absolute liability according to § 2 Abs. 1 Haftpflichtgesetz (HPflG), quasi-contractual liability according to § 280 Abs. 1 BGB analog or government liability according to § 839 BGB in conjunction with Art. 34 GG. With the help of case studies, the following article displays which aspects are relevant from a legal point of view for the municipal liability for damages caused by backwater. We will give some advice on which steps a municipality should take to protect itself against claims for damages in this regard. The article is split between the issue at hand and the following issue. The first part concentrates inter alia on the landowner’s obligation to install a backing-up valve. In general, there is no municipal liability if the landowner omitted to install such a valve. Besides, the municipal duties of care owed to the landowners will be examined, e. g. regarding the dimensioning of the canalisation. A municipality may be subject to a pro rata liability if it breaches a duty of care it owes to the landowner, for example the duty to inform the landowner about modifications of the canalisation which increase the risk of backwater.