Who's Responsible for Repairing a Damaged Retaining Wall?

Imagine a retaining wall on the boundary between two properties begins to deteriorate. One neighbor wants to repair the wall, but the other refuses to contribute to the costs. This situation raises an important question: Who is responsible for the cost of repairing and maintaining a retaining wall?

The Complexity of Retaining Wall Responsibilities

Determining who should bear the costs for repairing a damaged retaining wall isn't always straightforward. It's a situation that many property owners may find themselves in, and it’s crucial to understand your legal rights and obligations.

Every landowner has a duty to ensure that their actions do not harm another person’s land. This principle is known as the “right of support for land in its natural state.” Essentially, this means that while a property owner is not required to actively provide support to a neighboring property, they cannot remove existing support without replacing it with an adequate alternative. For example, if your actions, such as improper drainage, cause damage to a neighbor’s retaining wall, you could be held liable for that damage. Each instance of damage creates a new opportunity for legal action.

The Challenges of Identifying Liability

One complicating factor is that retaining walls are often constructed long before the current owners move in, making it difficult to determine who is responsible for their maintenance. Even if you sell your property, you could still be liable for a retaining wall failure that occurred due to conditions you created while you owned the property. Unfortunately, tracking down the original builder or previous owner responsible for the wall's construction is often impractical, leaving current owners to deal with the fallout.

Preventive Measures: Agreements and Easements

To avoid disputes, it’s wise to reach an agreement with your neighbor before constructing a new boundary retaining wall. This agreement can be formalized through a "right of support" easement, which clearly outlines each party’s obligations for repairs and maintenance. Without such an easement, property owners should generally expect to share the costs of repairs on a common boundary. However, if the damage was caused by one party's actions, an unequal sharing of costs might be appropriate.

Retaining Walls and the Fencing Act

Although retaining walls are not explicitly covered by the Fencing Act, there are instances where they might be considered a boundary fence. In such cases, you may be able to serve a Fencing Notice on your neighbor. This notice is a formal proposal that details the work to be done, the materials to be used, and the costs involved. By default, costs are shared equally, but your neighbor has 21 days to object. If they do not, it’s assumed that they agree to the proposal and will be liable for half of the expenses.

Seek Legal Advice for Peace of Mind

Liability for a damaged retaining wall can be complex, with the specific circumstances of the wall's failure playing a critical role in determining responsibility. If you find yourself in a dispute or are uncertain about your rights and obligations, consulting with a lawyer is the best course of action. A legal expert can provide guidance tailored to your situation, helping to ensure that you handle the issue effectively and fairly.