Property & Real Estate
Residential and commercial property — when retaining walls start to collapse, the cost to repair or replace can be staggering. How do we determine who is liable?
When retaining walls start to collapse, the cost to repair or replace can be staggering. Furthermore, the owners are usually unhappy to suffer the resulting column-supported terrace that encroaches onto their land in support of the new retaining wall.
Consequently, an escalating legal dispute arises about who is liable for the monstrous repair costs and damages for loss of land.
The property owners must be first separated into two classes — the party that benefits from the retaining wall and the party who is burdened by the retaining wall. To establish these classes, there are several pivotal key factors.
It is common to find large 1960s retaining walls supporting residential and commercial properties and swimming pools. These retaining walls are now almost 60 years old and in most cases received numerous budget repairs over the years. Ultimately, the structural integrity of the retaining wall will fail and the infrastructure built upon the supported land will probably slide and collapse onto the infrastructure below.
The contour of natural land surrounding the disputing parties usually identifies if the retaining wall was used to cut into the natural contour of the land to support construction, or to back-fill the natural contour of the land to level the lot for construction purposes.
Normally the contour of the land is cut to level the lot. However, in both instances, the party cutting into the land or building up the land is usually liable for the retaining wall because they take the benefit of the retaining wall. Keep in mind, it may be the case the natural contour of the land is both cut and built up, which may result in proportional liability between the parties.
A practical and simple means to better understand the natural contour of the land is to look at the sewer and stormwater mains and manholes — it is very unusual they will change from the original development of the respective lots. The mains pipes should lead you to two outcomes: the original contour of the land, and whether the land has been built up or cut into.
Each case must be determined on its material facts. You are encouraged to consider some important aspects before you give us a call to discuss.
It is not difficult and relatively inexpensive to obtain an expert report on the boundary between the two properties. This report should show exactly which side of the boundary the retaining wall resides. This is important because a retaining wall is a fixture attached to the land, and fixtures pass with the land. Should the retaining wall clearly reside on one property, it would be prudent to argue the owner’s liability.
Alternatively, the question of ownership can become tricky when the retaining wall crosses boundaries and encroaches into the neighbouring lot. This is possible if the retaining wall was built in the 60s, as property boundaries were marked out with a measuring tape and wooden pegs.
It may be sensible to obtain a copy of the authority’s archived building approval cards for the competing lots. The building approval cards should show which building was constructed first — providing evidence as to when the retaining wall was constructed and for which lot’s benefit. This could be important should the competing lots be subdivided from the original lot by the same original owner.
Should it be the case that you are not the liable party for the retaining wall, you are still required to take active steps to mitigate your loss — otherwise you may damage your ability to claim for damages in the future. Active steps include taking positive action to limit your damages and attempting to settle the issue without going to court.
It is recommended you maintain written communication with the opposing property owner and attempt to settle the issue without going to court. You should note, retaining walls are not fences and QCAT is unable to assist you in disputes of this nature. That said, it is important to take your time and attempt to resolve the matter — recorded in writing or electronically (with consent of the parties).
Arguably, mitigation of loss is the most important message to take from this article, and one you should turn your mind towards.
Our natural weather cycle is changing. Winter is shorter, summer is longer and much hotter, and our rains are torrential. Retaining walls go overlooked — however, they are exposed to the elements and manage overland and subterranean water drainage. Given the levels of exposure, it may be prudent to:
Please feel free to call to discuss any aspect of the above, or should you need legal assistance or tips with negotiating disputes.