Legal Question in Real Estate Law in Minnesota
Retaing Wall Replacement
My house has a retaining wall which borders my neighbor's property and sits on entirely on my property according to the most recent survery.
My house sits the below the wall which is holding back my neighbors land and protecting his foundation. It would seem we both benefit from the wall, but that my neightbor benefits much more than I. The wall is 50 years old so who built the wall is difficult to determine.
The title documentation states that the wall is an encroachment onto my property. Additionally, my neighbor has large trees on his lot near the wall that have roots that will be greatly affected with replacement of the wall.
Who is responsible for the replacement of the wall? If I am, am I responsible for any harm done to his trees?
2 Answers from Attorneys
Re: Retaing Wall Replacement
I'm unclear on the location of the wall: you say it is entirely on your property, but you also refer to it as an encroachment.
The tree that apparently is harming the wall also complicates the issue.
As a general rule, neighboring properties are required to continue to provide support that is already there. Under your circumstances, the cost would probably be divided if the issue is litigated.
A far better approach is negotiating a repair or replacement in which you both participate. You both are in a position to make each other miserable, but all this will do is generate legal fees and delay the solution. A better way is to negotiare the compromise and have a lawyer draft a short recordable agreement so that neither you nor your successors in title need to deal with this again.
Re: Retaing Wall Replacement
I had a case about ten years ago where a retaining wall collapsed. The wall supported my client's parking lot at his place of business, and when it went part of the parking lot went with it. It had been built on land belonging to a neighbor with the neighbor's permission, and collapsed into the neighbor's parking lot - belonging to a townhome owner's association - and took out a few expensive cars with it.
The wall had been built below standards by an unlicensed crook, who wound up in Stillwater, who had been hired by the previous owner of the property from whom my client had taken title. It had never been properly inspected, so we had the city involved as well.
We wound up with a multi-party lawsuit, involving former and present property owners and the insurance companies for the damaged cars. It went all the way to the court of appeals, where they invited all of us to do oral arguments. I won. I learned more than a guy should ever know about retaining walls.
The court of appeals ruled that it was the responsibility of the guy who owned the wall to maintain it. That was new law. All the previous law seemed to say that the wall was the responsibility of he who built it or of he who benefited from it. The city could have some responsibility too, depending on permit and inspection ordinances and what they say.
The sad fact is that for what everyone spent on attorney fees, they could have built several new retaining walls and had a big block party and barbeque besides.
Talk with your neighbor.
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