Whose responsibility to retain?

[treelover]

What is the name of your state? CA
We live in a slightly sloping neighborhood. Our home sits lower than the house to the east of us and we have an older, few inch retaining wall about 3 ft. in on our property on that side, and then our cut driveway, which is well onto our property. On the west side (where the problem is), there is a few feet high wall, with the top bricks leaning slightly (maybe 6 inches at MOST) onto the west neighbors cut driveway, which runs along the property line. These structures were probably all built in the 50s. New people took ownership of the house (quite suspiciously, I might add) and had the property surveyed and told us that "our wall on our property" was damaging their cars on their driveway and asked us to remove these top bricks and cap the wall that is between the properties. I had a mason come out to give an estimate and inspect and he said there is a low concrete retaining structure (maybe 3-6 inches wide and about 2 feet high) that is doing its job in retaining. However, only 2-3 inches of it is on their side and it looks to me like it is between the property lines but along their side of the driveway. The mason said the wall is clearly on our side and it is just an unfilled ornamental wall that is leaning over the retaining portion because the retaining portion is not as high as the wall. However, he said the wall is trying its best to keep the 2 feet or so of soil and debris up onto our higher property. We have no problem cutting the top blocks of the wall despite the charge of $2500 (it is a looooong wall). However, the mason said this may cause erosion onto their cut driveway during rains. There are also lots of trees on both properties with aggressive root structure, but of course, the neighbor says it is our trees that are causing the problem. I am afraid if we chop the wall the erosion may not happen this year, it will probably happen within the next 3 years. I do not want to hurt the root structure of any of the trees on either property. I am also afraid if this neighbor (who I believe will not last at this house) flips the house, the new owners will complain to us because of the chopped wall and “our” erosion. Also, they do have room on the other side of their drive. Shouldn't they use that portion if they need a larger driveway (they just planted some cheap flowers there with no border)? Our current zoning says a driveway should have a foot at least on either side and additionally allow a vertical structure of at least 6 inches. They have just 3 inches of that retaining structure in on their property and then the sloping wall adds maybe another inch or two along their drive. However, this was all built so long ago I don’t think current zoning applies. One more thing, our past neighbors of almost a decade, never complained or asked about the wall (I think they drove over where the cheap flowers not reside), but they attached a post for their gate and it is still there (on “our” wall... I don't mind and always thought it was a joint wall). Whose responsibility is it to keep higher dirt, etc. off a property? The lower property or the higher property? Should we ask the neighbor to pay half of the cut and cap job? If we do, what are our obligations for a more permanent retaining wall in a few years? and where should it be located? Thank you!What is the name of your state?

 

[seniorjudge]

What is the name of your state? CA
We live in a slightly sloping neighborhood. Our home sits lower than the house to the east of us and we have an older, few inch retaining wall about 3 ft. in on our property on that side, and then our cut driveway, which is well onto our property. On the west side (where the problem is), there is a few feet high wall, with the top bricks leaning slightly (maybe 6 inches at MOST) onto the west neighbors cut driveway, which runs along the property line. These structures were probably all built in the 50s. New people took ownership of the house (quite suspiciously, I might add) and had the property surveyed and told us that "our wall on our property" was damaging their cars on their driveway and asked us to remove these top bricks and cap the wall that is between the properties. I had a mason come out to give an estimate and inspect and he said there is a low concrete retaining structure (maybe 3-6 inches wide and about 2 feet high) that is doing its job in retaining. However, only 2-3 inches of it is on their side and it looks to me like it is between the property lines but along their side of the driveway. The mason said the wall is clearly on our side and it is just an unfilled ornamental wall that is leaning over the retaining portion because the retaining portion is not as high as the wall. However, he said the wall is trying its best to keep the 2 feet or so of soil and debris up onto our higher property. We have no problem cutting the top blocks of the wall despite the charge of $2500 (it is a looooong wall). However, the mason said this may cause erosion onto their cut driveway during rains. There are also lots of trees on both properties with aggressive root structure, but of course, the neighbor says it is our trees that are causing the problem. I am afraid if we chop the wall the erosion may not happen this year, it will probably happen within the next 3 years. I do not want to hurt the root structure of any of the trees on either property. I am also afraid if this neighbor (who I believe will not last at this house) flips the house, the new owners will complain to us because of the chopped wall and “our” erosion. Also, they do have room on the other side of their drive. Shouldn't they use that portion if they need a larger driveway (they just planted some cheap flowers there with no border)? Our current zoning says a driveway should have a foot at least on either side and additionally allow a vertical structure of at least 6 inches. They have just 3 inches of that retaining structure in on their property and then the sloping wall adds maybe another inch or two along their drive. However, this was all built so long ago I don’t think current zoning applies. One more thing, our past neighbors of almost a decade, never complained or asked about the wall (I think they drove over where the cheap flowers not reside), but they attached a post for their gate and it is still there (on “our” wall... I don't mind and always thought it was a joint wall). Whose responsibility is it to keep higher dirt, etc. off a property? The lower property or the higher property? Should we ask the neighbor to pay half of the cut and cap job? If we do, what are our obligations for a more permanent retaining wall in a few years? and where should it be located? Thank you!What is the name of your state?

Q: Whose responsibility is it to keep higher dirt, etc. off a property?

A: I am not sure about "higher dirt" (whatever that is) but you cannot trespass on your neighbor's real property.

 

[treelover]

Our whole lot is "higher" than our neighbors cut driveway. They WANT us to do this. We are not trespassing.

 

[seniorjudge]

Our whole lot is "higher" than our neighbors cut driveway. They WANT us to do this. We are not trespassing.

That's not what your post said:

New people took ownership of the house (quite suspiciously, I might add) and had the property surveyed and told us that "our wall on our property" was damaging their cars on their driveway and asked us to remove these top bricks and cap the wall that is between the properties.

 

[treelover]

If you are saying our top blocks of the wall ,that was built before I was even born, are trespassing, then I am asking " if I remove them, and my dirt falls on their driveway... then am I liable and now have to tear down my 12 trees that are in on my property to build a retaining wall on my property to keep my higher ground house off their lower ground cut driveway?

 

[seniorjudge]

If you are saying our top blocks of the wall ,that was built before I was even born, are trespassing, then I am asking " if I remove them, and my dirt falls on their driveway... then am I liable and now have to tear down my 12 trees that are in on my property to build a retaining wall on my property to keep my higher ground house off their lower ground cut driveway?

It doesn't matter when the trespassing started. You cannot trespass.

 

[treelover]

So you are saying, we should pay the full amount to take our trespassing blocks off their driveway, despite the fact that it is serving the purpose of retaining? Then my next question is... if I do that ... what do I do about the next letter that asks us to remove our eroding soil which is dumping onto their cut drive? All the other homes have their drives in on their properties except my neighbors.

 

[seniorjudge]

So you are saying, we should pay the full amount to take our trespassing blocks off their driveway, despite the fact that it is serving the purpose of retaining? Then my next question is... if I do that ... what do I do about the next letter that asks us to remove our eroding soil which is dumping onto their cut drive? All the other homes have their drives in on their properties except my neighbors.

You cannot trespass.

You cannot trespass with a wall.

You cannot trespass with dirt.

You cannot trespass at all.

 

[treelover]

So what you are saying is someone can cut a driveway right up to a property line and then tell the higher parcel to keep their dirt up on their parcel. That does not seem right.

 

[treelover]

I already know what you are going to say... it depends on current zoning. So what you are saying is... I am stuck with a new neighbor who can take advantage of where their cut driveway is and can drain us annually with no permanant solution.

 

[justalayman]

So what you are saying is someone can cut a driveway right up to a property line and then tell the higher parcel to keep their dirt up on their parcel. That does not seem right.

No they cannot do this. You need to find out who built the wall and if there are any agreements concerning the wall. Generally when a person cuts in a driveway as you describe, they are responsible for building a structure to maintain your lot. IOW: you cannot alter the terrain of your lot to an extent that it will adversely affect your neighbors lot. ergo; a retaining wall is built.

It may take some research and you may not be able to actually find any documentation concerning the wall but it sounds as the wall was built for the benefit of the neighbors property and may be responsible for it's upkeep.

Time to do some deed research

 

[treelover]

Thank you! Thank you! Thank you! I like your response much better than Senior Judge's. Although, I appreciate both of your time! Where can I go for deed research? We are next to a corner house and I believe this was once one big lot that was subdivided all at the same time. I don't think they thought that far ahead in the early 50s to this problem. A similar corner lot (the next corner lot over) is as big as our lot + our new neighbor's +the one behind our new neighbor's. I think this new neighbor is going to have a similar problem with that neighbor who is also uphill of them, but does not have a cut drive, just a retaining wall next to grass. However, that wall will not be as urgent as ours because of the cut driveway. I want to be a reasonable neighbor... what do you recommend if I can not find anyting in the "deed research?" Thank you!