Original retaining wall on property line. Who pays?

[tasherwin]

What is the name of your state? California
Our neighbor directly behind us is complaining about the 4 foot tall wooden retaining wall that is starting to fail. We agree that is does need repair.
It was built by the original developer 35 years ago. According to the developer's lot line drawings we obtained from the city, it looks like the wall was built on the property line. We also measured the distance to make sure. Our back neighbor says that we are responsible for repairing the wall because we are the uphill neighbor. We think the cost should be split with the neighbor.

Who's right?

Also, what would happen (legally) if we just waited for the wall to fail in one spot before making repairs?

 

[divgradcurl]

What is the name of your state? California
Our neighbor directly behind us is complaining about the 4 foot tall wooden retaining wall that is starting to fail. We agree that is does need repair.
It was built by the original developer 35 years ago. According to the developer's lot line drawings we obtained from the city, it looks like the wall was built on the property line. We also measured the distance to make sure. Our back neighbor says that we are responsible for repairing the wall because we are the uphill neighbor. We think the cost should be split with the neighbor.

Who's right?

Also, what would happen (legally) if we just waited for the wall to fail in one spot before making repairs?

You would need to check with your city or county building department or code enforcement department -- this is going to be covered by a local ordinance most likely.

EDIT: As far as what would happen if you just waited, again, that's related to the question of who is ultimately responsible.

 

[Cedrus]

It sounds like the wood is giving out after 25 years, correct? Or is the soil upslope moving/slipping?

Can you find the iron pipe markers with a metal detector or ask a fence builder to come over for an estimate, because they have a "pin locator", more sensitive than a metal detector and they will be happy to find them for you**************if it means they have a shot at getting the job.

 

[tasherwin]

It sounds like the wood is giving out after 25 years, correct? Or is the soil upslope moving/slipping?

Can you find the iron pipe markers with a metal detector or ask a fence builder to come over for an estimate, because they have a "pin locator", more sensitive than a metal detector and they will be happy to find them for you**************if it means they have a shot at getting the job.

The vertical pylons houlding up the horizontal wood boards are starting to move out at an angle instead of being upright. So I guess the soil is moving/slipping? The horizontal wood boards are also rotting.
Where would I begin to look for the iron pins? At the property corners?

 

[tasherwin]

You would need to check with your city or county building department or code enforcement department -- this is going to be covered by a local ordinance most likely.

EDIT: As far as what would happen if you just waited, again, that's related to the question of who is ultimately responsible.

We spoke to the city building department but they refused to give a legal opinion as to who is responsible for the cost of repair. The only way they will get involved in ownership issues is if it is a public hazard, which it is not. The city has no specific ordinance on property line structures.

Who else (state? county?) could I consult to find out the answer? Is there some written rule book for California?

 

[Cedrus]

Get one or more fence builders over to your place. Tell them you need to rebuild the fence but are not sure of the property line. They will locate the two iron pipe markers for you.

Ask them for written bids. Keep them for later use, if necessary.

 

[HomeGuru]

Get one or more fence builders over to your place. Tell them you need to rebuild the fence but are not sure of the property line. They will locate the two iron pipe markers for you.

Ask them for written bids. Keep them for later use, if necessary.

**A: I like that idea.

 

[divgradcurl]

We spoke to the city building department but they refused to give a legal opinion as to who is responsible for the cost of repair. The only way they will get involved in ownership issues is if it is a public hazard, which it is not. The city has no specific ordinance on property line structures.

Who else (state? county?) could I consult to find out the answer? Is there some written rule book for California?

There are no specific laws on the books in the state covering retaining walls, other than the Civil Code sections dealing with construction defects, and that portion of the building code that has been incorporated in the law in California. California does have a statute dealing with common fences.

Here's the problem you have -- as the uphill neighbor, if the retaining wall falls, it will be your property that ends up on his property -- so you would most likely be liable for any damage caused to his property. You might want to sit down with a local attorney, who can review all of the facts of your situation and advise you accordingly.

Not sure why knowing where the pins are really matters. If your property ends up damaging his property, you will likely be liable for the damages. You have a duty to keep your property off of his -- he does not have a duty to keep your property off of his. But talk with an attorney in your area, you may have some local regulations or ordinances that provide for cost sharing or limiting liability in these cases.

 

[tasherwin]

Thank you all. I think getting a fencing/retaining wall contractor and calling an attorney are both good ideas. Sounds like there are no previously written 'standard rules' concerning this issue.

 

[SnowCajun]

Thank you all. I think getting a fencing/retaining wall contractor and calling an attorney are both good ideas. Sounds like there are no previously written 'standard rules' concerning this issue.

Just my 2 cents but I think if I were going to take it upon myself to rebuild the fence I'd do so a couple of inches over on my own property so whoever lives on the other property can't misuse your fencing in anyway. If it's built right on the property line then it may be allowable for him to do things to the fence from his side. Like I said, just my 2 cents, but I remember my father going through something similar to that in the 1960's and his attorney told him to be sure the fence was totally just inside his property line.

Good luck,
SnowCajun

 

[divgradcurl]

Just my 2 cents but I think if I were going to take it upon myself to rebuild the fence I'd do so a couple of inches over on my own property so whoever lives on the other property can't misuse your fencing in anyway. If it's built right on the property line then it may be allowable for him to do things to the fence from his side. Like I said, just my 2 cents, but I remember my father going through something similar to that in the 1960's and his attorney told him to be sure the fence was totally just inside his property line.

Good luck,
SnowCajun

This isn't a fence issue, it's a retaining wall issue -- it's a lot harder to move a retaining wall!

 

[SnowCajun]

This isn't a fence issue, it's a retaining wall issue -- it's a lot harder to move a retaining wall!

Doh! I sure read that one wrong! Thanks for pointing that out, I've lived in the flatlands so long that I've not dealt with those before. I think I'll leave this one alone.

Good luck guys,
SnowCajun

 

[Cedrus]

Yo divagradgirl:

I was hoping pin location would show that the developer's drawings were off and the retaining wall was entirely off tasherwin's property.

Just a 1 in 100 chance that might save him some $$

 

[QandA]

Here are a couple of codes that may help
California Civil Code Section 841:
Coterminous owners are mutually bound equally to maintain:
1. The boundaries and monuments between them;
2. The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards incloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.
And…
California Civil Code Section 832 :
Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purposes of construction or improvement, under the following conditions:
1. Any owner of land or his lessee intending to make or to permit an excavation shall give reasonable notice to the owner or owners of adjoining lands and of buildings or other structures, stating the depth to which such excavation is intended to be made, and when the excavating will begin.
2. In making any excavation, ordinary care and skill shall be used, and reasonable precautions taken to sustain the adjoining land as such, without regard to any building or other structure which may be thereon, and there shall be no liability for damage done to any such building or other structure by reason of the excavation, except as otherwise provided or allowed by law.
3. If at any time it appears that the excavation is to be of a greater depth than are the walls or foundations of any adjoining building or other structure, and is to be so close as to endanger the building or other structure in any way, then the owner of the building or other structure must be allowed at least 30 days, if he so desires, in which to take measures to protect the same from any damage, or in which to extend the foundations thereof, and he must be given for the same purposes reasonable license to enter on the land on which the excavation is to be or is being made.
4. If the excavation is intended to be or is deeper than the standard depth of foundations, which depth is defined to be a depth of nine feet below the adjacent curb level, at the point where the joint property line intersects the curb and if on the land of the coterminous owner there is any building or other structure the wall or foundation of which goes to standard depth or deeper then the owner of the land on which the excavation is being made shall, if given the necessary license to enter on the adjoining land, protect the said adjoining land and any such building or other structure thereon without cost to the owner thereof, from any damage by reason of the excavation, and shall be liable to the owner of such property for any such damage, excepting only for minor settlement cracks in buildings or other structures.

Hope this helps

 

[divgradcurl]

California Civil Code Section 841

I am not aware of any caselaw or ordinances that extend 841 to cover retaining walls. Do you have a cite where 841 was used to cover maintenance of a retianing wall? Not trying to challenge anyone, I am just curious -- I am not an expert on this by any stretch of the imagination.

California Civil Code Section 832

832 comes into play when someone is digging on their own property -- they can't dig in such a way that it impacts a neighbor's land. Since the retaining wall is already in place, 832 is not likely to be applicable here.

The real issue is this -- if the retaining wall collapses, the uphill neighbor -- the OP -- is almost certainly going to be liable to the downhill neighbor for any damage his property causes to the downhill neighbor's property. The uphill neighbor will be solely responsible unless he can find some caselaw or local ordinance which makes the downhill neighbor partially or equally responsible for maintenance of the retaining wall.

If you -- or anyone else -- has caselaw showing that 841 makes neighbors jointly responsible for the maintenance of a retaining wall, that would be the most help for the OP. Without knowing the city and county the OP lives in, it's hard to check local ordinances, if any.