A retaining wall situated on the boundary between two properties began to deteriorate. One of the neighbours wanted to repair the retaining wall but the other did not wish to contribute to the costs of the repair.

The retaining wall was built before both of the neighbours moved into their respective homes. They sought legal advice to determine who is responsible for cost of repairing the retaining wall.

Who is responsible for the cost of repairs and maintenance to a retaining wall?

Determining responsibility for a damaged retaining wall is not always clear cut.

Every land owner has a duty not perform any activity on their land which would cause damage to another person’s land. This is known as “the right of support for the land in its natural state.”

The “right of support” does not require the property owner to take positive action to provide support to someone else’s land. Rather, it means that you cannot remove existing support to a neighbouring property without substituting it with appropriate alternative support.

If an owner’s actions cause damage to their neighbour’s land, then they would be responsible for that damage (such as improperly drained storm water causing damage to a retaining wall). Every new instance of damage gives rise to a new basis for taking action.

It is important for owners who excavate land and construct retaining walls to be aware that they may remain liable for the failure of the wall even after they have sold their land. However, as in the circumstances above, tracking down the owner who originally excavated the land and constructed the retaining wall is often not possible.

It is best to reach an agreement prior to the construction of a new boundary retaining wall and formalise the arrangement in a right of support easement, which sets out the parties’ obligations for repairs and maintenance.

In the absence of an easement, property owners should expect to share costs for repairs and maintenance on a common boundary with their neighbour, although there may be scope for unequal sharing when one party’s actions have led to the failure.  

Although it is not specifically covered by the Fencing Act, a retaining wall can sometimes be considered a boundary fence, in which case it may be possible to serve a Fencing Notice on your neighbour.

This is a formal proposal which outlines the proposed work and the materials to be used. The notice should also include the cost of the work and the default provision is for equal sharing. The other party has 21 days to object to the proposal, otherwise it will be determined that they have consented to the work and be liable for half of the costs.  

Ultimately, liability for a damaged retaining wall is not always straightforward and will depend on the individual circumstances that led to its failure.  If you have any concerns about your rights and obligations in relation to retaining walls, it is best practice to consult first with a lawyer.

 

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Rachel Collins and Charlotte Cameron

Senior Solicitor / Law Clerk
Wellington