Posted this on the real estate board, but I would like to hear what everyone here has to say.

My wife and I were under contract on a 1 acre lot near Magnolia that we will be building a custom home on. After the storms last week, I decided we needed to check it out to see how drainage was. We found what is basically a wet weather stream flowing through the middle of the lot, 10-15 yards wide, 12"+ deep. See the pictures below to get an idea how bad it is. At that point, we decided that really is no way to build on the lot, and our home builder basically agreed. Now, we don't close until July 27th, so our builder/realtor started the process to terminate the contract. The contract did state that the property was sold 'as-is', but it also stated that the seller would notify us, the buyer, of any flooding. We do know that it sits entirely outside the 100 year floodplain, but that is not the issue at hand here. Though I am curious if the legal definition of flooding requires being within the floodplain. I should add, nothing on the property prior to the rains last week indicated that a wet weather creek would flow through the lot.

I am curious what everyone thinks about receiving our earnest money back. I personally think, of course biased as the buyer, that we should be entitled to at least some of the earnest money (not entirely a drop in the bucket either). We would not have entered the contract if we had known about the flooding issue. Now, it will be hard to show that the seller had prior knowledge this would occur.


Just want opinions, it's really out of our hands at this point.

I don't know the answer, but good luck. I wasn't expecting that much water and then I saw the pictures. I'm sure they'll probably say it has never flooded before and that we have just gotten an extreme amount of rain over the past week (which is true). There are a lot of places that have gotten more rain over the past week than they got from Allison. However, I still think your apprehension is warranted.

Yes, I understand the amount of rain, probably exceeded 14" inches in that area. However, to expect it to never happen again is unrealistic. To be honest I am glad we saw it when we did. Foundation would have been poured in just a few weeks, and at that point we would have been SOL. Rather lose all the earnest money than deal with that.

It looks like the neighbors land is built up next door. I would guess their lot looked a lot like yours prior to their developing it and raising grade. I would assume you would be required to do the same to develop your lot becasue you would need to have the foundation X' about the road for draining & flood protection purposes. IMO the lot needs to be Engineered with with swales around the perimeter to divert the water.

It looks like the water is coming from the back side of the lot and running toward the street? It's probably just a matter of bringing in some fill to at least divert the water in a controlled way away from where you planned to put the house so it goes where you want it to. It actually may work out pretty well to have the low area between your lot and the neighbors so it drains both lots toward the street.

This obviously isn't a typical suburban neighborhood development with sidewalks and street drains. In other words the neighborhood hasn't been developed to take care of these issues. You might be able to negotiate the price of the lot down since you now are going to need to spend money to bring in fill. Anyone who wants to build on that lot will have to do the same and, in my opinion, that should affect the price of the lot. Also, I wouldn't think the seller could now, in good faith, say there is no history of flooding. Clearly there is an issue regardless of how much rain fell.

I'd say with this new info your window to renegotiate the price is now open. That may be a better solution that walking away and loosing some or all of your earnest money.

[This message has been edited by D&C 2002 (edited 7/17/2012 9:17a).]

You would definitely have to raise the lot, at least where you want to build, and then have an alternate drainage path created, such as a wide shallow ditch along the property line to wherever the flow went or into any existing drainage. Engineering that properly might cost some.

This happens a lot in large lot developments. When someone builds something, it inadvertently affects those around them.

My uncle built a house in a neighborhood like that and he brought in dirt to bring his foundation up about 18" above ground level. His neighbor built just above ground level, and with subsidence, they have a constant worry about flooding during a heavy rain, if the ditches should back up.

Questions:

1. At what point did you term the agreement. Has the inspection period expired?

2. Did your builder tell you it's impossible to build on the lot, or is it an economic issue? Unless you plan to build a 15,000sf house, you can easily build up a pad and reroute any water.
2. Is this a rural lot or part of a platted community? There should be a lot grading plan which you'll have to adhere. It would have considered the existing and proposed drainage and you should have seen any existing drainage features.
3. Is your EM with an individual or the owner of the subdivision. Would you consider another lot and transferring the deposit?

I'm in Dallas, but what I've heard from our counterparts in Houston is that the recent rains will likely constitue an 100-yr event. Water will be places that no one anticipated. Even beyond the limits of the existing 100yr. FEMA will likely update their maps in response.

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1. At what point did you term the agreement. Has the inspection period expired?
2. Did your builder tell you it's impossible to build on the lot, or is it an economic issue? Unless you plan to build a 15,000sf house, you can easily build up a pad and reroute any water.
2. Is this a rural lot or part of a platted community? There should be a lot grading plan which you'll have to adhere. It would have considered the existing and proposed drainage and you should have seen any existing drainage features.
3. Is your EM with an individual or the owner of the subdivision. Would you consider another lot and transferring the deposit?

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All good questions.

1. Close July 27, past the 14 day option period.
2. Not impossible obviously, but IMO and his not a good idea.
3. Rural lot. Not sure on the engineering requirements.
4. Individual.

Another lot exists in this neighborhood that does not have drainage issues and sits at on high point. It is a little bit more expensive, but will not require a well and is 1/3 acre larger. We have actually already put in an offer on this new lot. It is my opinion that it is wiser to build in an area that avoids a problem than attempt to correct a known issue like this. I just want to know what everyone thinks in regards to the earnest money. At this point we are committed to walking away even if all money is forfeited. I simply am not comfortable building on that lot.

quote:

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I'm in Dallas, but what I've heard from our counterparts in Houston is that the recent rains will likely constitue an 100-yr event. Water will be places that no one anticipated. Even beyond the limits of the existing 100yr. FEMA will likely update their maps in response.

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No doubt its a significant rain event, but I do not believe it constitutes a 100 yr event. FEMA has already updated the maps for this area, but they will not officially be released until July 2013. On the new maps, this lot will fall mostly within the 100 yr floodplain.

Mainly I am kicking myself because I saw the revised FEMA maps but I was not overly concerned at the time. I did not take into account, and neither does FEMA I believe, overland flow not attributed to a stream/creek. The nearest creek did not come close to the BFE of this lot. Flooding seen above is strictly due to drainage and isn't evident on any FEMA maps.

[This message has been edited by mneisch (edited 7/17/2012 9:59a).]

I get your concern. Sure, it's probably possible to do some grading to take care of the problems, but it is something that I wouldn't want to have to worry about. In the back of my mind, I would always wonder how things were going to hold up when we get a really good rain like we have been getting.

quote:

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I get your concern. Sure, it's probably possible to do some grading to take care of the problems, but it is something that I wouldn't want to have to worry about. In the back of my mind, I would always wonder how things were going to hold up when we get a really good rain like we have been getting.

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Exactly, if I can avoid the problem then that would be the wisest choice IMO. Also, a large amount of dirt work was not in my budget. I would rather get a different lot with no problems than throw money at this one. Builder agreed.

Looks to me like a minor pre-existing problem has been made worse by the neighbors that raised their lot so high. The Pal-Meadows (or however they're spelled) can be a wet-land indicator, but not always. They do indicate significant moisture though.

If you go through with this I would be careful. Where does that water eventually go? Straight to a creek or more development? Land owners/developers are responsible for mitigating increased runoff. It looks like the neighbors have made it worse. "Developers" in this part of the world are horrible and have been and some still are cutting every corner possible, and trying to turn every square inch of land that isn't a designated wetland into a lot. Even when some of that land would be a better community park.

You might be able to raise it enough to protect the house and keep swales between you and the neighbors that will turn into rivers on heavy rains. Just realize that water came off your neighbors roof and assorted impervious cover. You're going to double that impervious cover with your roof and driveway.

Saw palmetto, and it's a actually a facultative upland species. I work as a wetland ecologist doing environmental consulting, so I am quite aware of all the issues. That is really what makes me so apprehensive about building on that lot. I have seen and understand all the issues with building in wet areas. Not something I want to be concerned about.

We are walking away from the lot at this point, I would just like my earnest money back.

Just put in a basement, I mean "downstairs swimming pool" and all of that water will have somewhere to go.

I was thinking more along the lines of a lazy river or moat.

I would tend to agree with your view that the seasonal creek running through your property was never disclosed, thus meaning that you were never informed of such a feature directly.

That doesn't mean you'll get any of your earnest money back, but it is a valid argument in my uneducated on this issue opinion.

Additionally, I was always under the impression that your property improvements could not adversely affect neighboring property - and in this case, the fact that the house next door build up as much as they did seems to have compounded the problem by increasing the amount of runoff onto the lot in quesiton. Seems that would also be a card you could play, though others more educated in land should chime in.

Just wanted to give an update. We reached an agreement with the seller today, where we kept $1600 of the earnest money and they received $400, the amount they paid for the survey. Very happy about this.

Also, we are already under contract on a nearby lot that is 1/3 acre more and does not require drilling a well.

This really couldn't have ended much better.

Good to hear. I always like it when both sides can reach an amicable agreement.

Very good to hear

Good to hear, is this lot going to be in montgomery county. Only ask because currently i am interning for the agency that permits all wells for Montgomery county.

Yep, far southwest Montgomery County. Near the intersection of Nichol Sawmill and Roberts Cemetary.

Glad things worked out for you.

congrats on the new property, is a Public Water Supply available to that lot or does it already have its own well?

It is on public water, or maybe a private source, anyways the provider is Aqua Source.

Mind sending new an email? I have a question about lumber. Mneisch at tamu dot edu

That should be a PWS, email sent.