Legal Question in Real Estate Law in California
Who is responsible for a Retaining Wall?
I live on a hill and a fence that is about 30 years old exists between my neighbor and me. The fence is leaning and needs to be replaced. My neighbor agreed to pay half the cost of putting in a new fence.
However, all of the contractors that have given an estimate say that a small retaining wall must be put in first before the fence is replaced. There is about 2 feet of dirt from my neighbors yard that is pressing against the current fence, which is mainly why it is failing.
I assumed that my neighbor and I would be equaly responsible for putting in a Retaining Wall. However, my neighbor says that I should be solely responsible for the cost of the Retaining Wall because I am at the bottom of the hill. He says that the retaining wall only benefits me because the dirt is coming toward my house. Is he right?
2 Answers from Attorneys
Re: Who is responsible for a Retaining Wall?
No, he is not right. He has a duty to keep his dirt off your land.
Re: Who is responsible for a Retaining Wall?
I think the answer depends upon what each owner has done, if anything, to alter the natural topography. If everything is pristine and natural on both sides of the boundary, natural sluffing of earth creates no duty and therefore no liability for a duty's breach.
If there is dirt sluffing off the uphill lot because the uphill neighbor has been grading, diverting natural runoff, or anything of that sort that causes earth to slide down, the uphill neighbor MAY be liable to the downhill neighbor if the harm was avoidable and there was no good reason for the disturbance of the natural status quo.
On the other hand, if dirt is sliding downhill because of the downhill neighbor's excavation work or 'cut' type grading, he is very likely in breach of his duty to provide lateral support.
So, the answer isn't simple, but more than likely the neighbor who has caused the slides by disturbing the earth should pay. If neither has disturbed the natural surface, the cost should be shared.
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