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crowneagle
Retaining Wall Responsibility

I recently bought a property that has an embankment bordering one side of the property. At the top of the embankment, there is my neighbor's driveway, which appears to have been put in using a form of cut and fill. The embankment has started to cave in onto my property. We get along ok but there seems to be a disagreement developing between who's responsible for building a retaining wall. This cut and fill driveway was done before either one of us bought the homes. My stance is that I will accept responsibility up the the "root flares" of the trees that were buried when filling the embankment for their driveway. That is approximately the first 4' of height. I'm ascertaining that they are responsible from that point on, which is another 3' in height. They say I should pay for half the wall. I'm saying I will pay for what it would take to build the first 4', which, obviously would be much cheaper than going the full height of the wall. They did have the property line surveyed and most of the embankment is on their land. I think I'm being generous here and it is obviously not enough that I'm willing to contribute anything. My basic question here is how would anybody determine the original grade of the hill. I'm using the buried trees to determine the original grade. Also, I'm determining my responsibility, figuring that retaining walls rise in price exponentially not linearly. I am now semi retired but I am a third generation mason. Technically, I know what needs to be done but my concerns are legal concerns. They, obviously, have more resources than me and I don't want this to spin out of control and end up in court. Am I right or wrong with my position?

HoustonRemodeler
Re: Retaining Wall Responsibility

From what you wrote it seems your position is more than generous. Your liability stops at the property line. If their property is causing damage to yours then you can sue for a remedy. Offering money to help solve their problem is quite nice since your expertise has great value.

johnjh2o
Re: Retaining Wall Responsibility
HoustonRemodeler wrote:

From what you wrote it seems your position is more than generous. Your liability stops at the property line. If their property is causing damage to yours then you can sue for a remedy. Offering money to help solve their problem is quite nice since your expertise has great value.

The responsibility belongs to the one that owns the property the wall is on.

dj1
Re: Retaining Wall Responsibility

You have a legal question here, and we don't know all the facts.

There is a survey from an independent surveyor, and "most of the embankment is on their land". Take this to a real estate lawyer and see what he/she says.

Once "most" is defined, a binding and final resolution could be reached.

Fencepost
Re: Retaining Wall Responsibility

I am not a lawyer or a surveyor. The following is only conjecture and has no basis in law or case.

If I am reading the original post correctly, there is currently no retaining wall; just a constructed embankment to provide for the neighbor's driveway.

Since it appears that the embankment was constructed for the purpose of the neighbor's driveway, the neighbor is responsible for the embankment. Your neighbor's responsibility to you is to ensure that the embankment does not impact your property. You may receive some benefit from a retaining wall, but the benefit is that your neighbor's dirt doesn't end up on your property: if your neighbor didn't construct a road, you would receive no benefit from the wall. Therefore, your benefit is indirect and solely comes from your neighbor's actions.

To the extent that the neighbor's embankment construction encroached on your property, regardless of when the construction happened, the owner of your property at the time should have granted easement for that encroachment. Lacking that easement, you have no responsibility; in fact your neighbor has a responsibility to restore your land to pre-construction condition. In the event that there is an easement, your responsibility is limited to ensuring that the easement is not encumbered. That is, you cannot willfully damage the neighbor's construction within the easement.

Effectively, providing that failure of the embankment is through no cause of your own, the entire responsibility for the embankment is your neighbor's.

I think you are being very generous and a good neighbor. If any portion of the retaining wall ends up being on your property, have a lawyer write up an easement granting your neighbor use of your land for the wall. Ensure that the responsibility for the maintenance of the wall is clearly defined.

Fencepost
Re: Retaining Wall Responsibility

P.S. -- The embankment may be failing because the root wads of the buried trees are rotting away. Even if you construct a retaining wall, your neighbor's driveway may develop large sinkholes.

A. Spruce
Re: Retaining Wall Responsibility

Definitely take this to a real estate attorney! I agree with what's been said, your responsibilities end at the property line, if their structures are affecting YOUR property, then it is THEIR responsibility to remedy the issue.

The alternative is to tell them to sit an spin, and when the driveway collapses into your property, you clean up the mess and they will be without a driveway, problem solved.

crowneagle
Re: Retaining Wall Responsibility

Let me explain a little further. There is a small shoddy stone retaining wall at the bottom of the embankment on my property. The embankment does not accurately follow the property line. The entire property line is a hodgepodge of various retaining materials, ie. very old and rotting landscaping timbers, graded dirt, short section of gabion baskets, and the junky stone retaining wall. Everything is fairly stable except the section above the lower retaining wall. The trees on the embankment have either been cut down or are in the process of dying. The stumps on my side are undermined and on their side the root collars have been buried 2'+- by the fill from the driveway. I could just rebuild the wall on my side but that would not solve their problem because best practices would require that any upper terrace be set back 2xH(H being the height of my wall). That would put their upper wall in the middle of their driveway. I am very against them doing any terrace too close to my wall due to the failure plane transferring all the load onto my wall. I tried uploading some photos but I'm having a difficult time. Is there a possible reason for that?

crowneagle
Re: Retaining Wall Responsibility
Fencepost wrote:

P.S. -- The embankment may be failing because the root wads of the buried trees are rotting away. Even if you construct a retaining wall, your neighbor's driveway may develop large sinkholes.

I told them that already. Once the trees die, there is nothing holding the soil at all. Their house is basically on a hill made up entirely of gravel soil. No hard pan, no bedrock, just many feet of loose gravel soil.

crowneagle
Re: Retaining Wall Responsibility
A. Spruce wrote:

Definitely take this to a real estate attorney! I agree with what's been said, your responsibilities end at the property line, if their structures are affecting YOUR property, then it is THEIR responsibility to remedy the issue.

The alternative is to tell them to sit an spin, and when the driveway collapses into your property, you clean up the mess and they will be without a driveway, problem solved.

That's funny because I was thinking the same thing. If they don't look at this reasonably, that's what I plan to do. NOTHING!

HoustonRemodeler
Re: Retaining Wall Responsibility

A serious survey may need to be conducted where ALL the following steps are taken:

1- Without knowing exactly where they will wind up, the surveyor starts at the nearest survey point which may be a distance away.

2- From the survey point the surveyor makes his way to the properties in question and stakes the corners.

3- You can have the surveyor make a map of the area in dispute with the wall sections noted as to where they fall in relation to the property line.

Unless this type of survey is done, the results can be off by more than a few inches and lead to MANY headaches. When this gets to court, this document will be critical. It can be prepared at any time as the earth isn't changing unless the walls are falling into your property. Annual photographs will help as well.

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