I did a survey, found the 2 corners and a RR tie wall, about 3’ high was leaning over the line, the toe face of the wall was on the neighbors side, holding back their dirt.
The neighbor thinks that since the wall is failing on to my clients side of the line, they should be responsible for the repair.
What do you think?
Dougie
Up, you ask? To quote Buzz Lightyear: To infinity.........and beyond.................
Seriously, the neighbor is being an idiot.
Ask them who will be sorrier if the wall falls over.
I only know about trees. If a neighbor's tree falls on my property, it becomes my tree to clean up, sell, burn, leave alone, or whatever.
The exception is that I can notify my neighbor before the tree falls that it is his responsibility to eliminate the danger or be liable for damages.
I don't know if the law works the same way for failing walls, but perhaps such a letter would work here.
If I'm reading this correctly, the base of the retaining wall is on the neighbor's property holding up their soil and the top face of the wall is leaning over the line. In that case I would say it is the neighbor's wall and they are on the hook for repairs. On survey I would call it out as an encroachment.
I might change my mind if I could show that the wall continued off the property line in a way that made it apparent that was intended for your clients benefit.
As Bill says though, ownership independent, it really comes down to who is going to have more harm done when it fails.
Assume for a moment that the adjoiner is a city and the immediate adjoining area is a sidewalk used by the public. The city would have the right to demand the owner of the retaining wall repair the wall to remove any part of it from the public right of way as it is a hazard to the walking public.
The owner of the wall would need to dig out behind the wall such that the wall could be rebuilt entirely or repaired such that it would remain on the owner's side of the boundary line.
The neighbor could have a point, it could depend on why the wall was built. Was it built to add fill to the neighbor's property, or was it to built to retain the neighbor's property while your clients property was cut? There may be an unrecorded/unwritten agreement between the adjoiners when it was built, that stipulate the responsible party for maintenance.
You bring up a good point; as well as Bill. The neighbor doesn't care if it fails; it's not going to hurt anything on their property.
My guess is; the wall was built because the garage that was built on my clients property needed to be cut, rather than filled. At least that's what I assume.
Would it be unreasonable to ask both parties to share in the expense? I'm sure they've already spent more on attorney's fees...
If something is built for my benefit it seems I should be the one responsible for its maintenance. The law may say otherwise but it shouldn't.
