Can neighbour ask us to move a retaining wall?

arielsmelody

Our house is higher than next door. When the houses were built 60 years ago the neighbour built a wall along his side of the boundary which is the retaining wall for our garden. This wall was too thin and is failing, and the current neighbour has asked us to rebuild it. The deeds say that boundary is our responsibility so we agreed. We planned to build a new wall twice as thick but with the extra on our side so on his side nothing would change. He is now asking us to rebuild completely on our land so that he reclaims the strip that the old wall stood on. Does he have any right to ask that? Space is tight on our side and we are already losing the space due to the extra thickness of the new wall.

FreeBear

He can ask, you can refuse. As for the legal position, I'll leave that for others to comment on.

However, depending on the height of this retaining wall, it may be prudent to consult a structural engineer conversant with retaining wall design. If it is holding back a significant amount of soil, you may need additional measures such as drainage and back filling with gravel on top of double or even triple thickness construction - Retaining walls are not just a case of bunging some bricks/blocks in.

arielsmelody

Yes, we've got a spec from a structural engineer, so that's sorted - that's why the new wall will be more substantial than the old one.

theoretica

You say that 60 years ago the neighbour built the retaining wall - why do you say that, why not your predecessor?  Were the two properties built separately or by the same developer?  Which had the change of height at the boundary - was their side dug down, yours built up or both?

Bendy_House

Interesting one, Ariel's, and I don't have the answer. Not sure there IS a definitive answer.

Some things that 'can' be said:

1) if the ground on your side is 'naturally' higher than the neighb's, and the soil NEEDS retaining so's it doesn't move, then that IS your responsibility, REGARDLESS of whether it's 'your' boundary or not.

2) the above is NOT true if the 'retaining' is required due to the neighb having excavated away the ground level on their side. Ie, if the land just has a gentle slope between you, and is clearly not moving, then a retaining wall is NOT needed at ALL. 

3) following on from 2, if your neighb then excavates away a step on this 'gently sloping ground', then THEY'D have to build the retaining wall. If YOU built up the ground level on your side of this gentle slope, then YOU'D have youknowwhat.

That's the basics.

This is where it becomes interesting. The original wall has been in place for 60 years, and was built by the NEIGHBOUR? Any idea why THEM? Can you tell/do you know if it's because either one of your predecessors CHANGED the ground level on their side? (I'd suggest that could be a 'biggie').

And are you sure it was the NEIGHB who built the original wall? This could be 'interesting', but if it had been YOUR predecessor who built that wall on your neighb's side, then there could 'possibly' be a case for Adverse Possession or an Easement that 'could' be used to retain that existing wall line. 

So, try and answer the above - WHY is the wall NEEDED, and WHO built it!

I have to say, since you are clearly willing to rebuild this wall without argument, and to have it done properly, then I personally think it a bit churlish of this neighb to also expect to (re)gain more land than they had when they bought the house. I mean, did they view the garden thinking "Hmm, we'll be able to gain 4 more inches at some point!", or did they just accept the garden as it was?!

If it turns out that you ARE fully responsible for putting a retaining wall there, then I guess it's bite the bullet time. It's up to you whether to gently express your disappointment at having to FULLY lose space on your side, when a compromise might have seen more 'natural' and 'neighbourly' after 60 YEARS of the wall having been fully on their side; they presumably accepted the garden as it was when they bought it? But, if it IS your responsibility, then it IS. End of.

What retaining height does this wall need to be?

If any of the above makes you think you have a good 'argument' for compromise, give the Leg Prot on your insurance a call to discuss it.

Oh, and if the NEIGHBOUR is actually arrsy about it all, then a wee ace card  - yes, you'll build the wall, and yes it'll be fully on your side, but the current wall is theirs, so THEY can remove and dispose of it. THEN you'll get the wall built... I mean, the existing wall is either 'THEIRS' or 'YOURS'; if it's the former, THEY clear it to make room for the new wall. If the latter, then you 'may' consider an AP/Easement.

So, drop that into a chat? Once they are adamant that it needs to be fully on your side, sigh, shrug, say "Ok. Let me know when it's all cleared away, and I'll book the builder.. " If they splutter at this, just say, "Well, that's either your wall or mine - you don't expect me to clear away YOUR wall for you?"

(Demolishing and clearing away existing is usually the worst part of any building job. If they are an 'ole, then they can pay for it :-). )

We can dream...

arielsmelody

Thanks for replies! The houses were built on sloping land by different owners so it's impossible to be certain exactly how the land lay when they were built. But from the materials used and the points where it starts and ends it is very clear that the wall matches other walls on their property and was originally built on their land. Goodness only knows how it came to be the retaining wall for us! It's not high - about waist height. I really don't want to get into a legal battle, I just want to replace a dodgy wall that's falling down!

Section62

arielsmelody said:

Thanks for replies! The houses were built on sloping land by different owners so it's impossible to be certain exactly how the land lay when they were built. But from the materials used and the points where it starts and ends it is very clear that the wall matches other walls on their property and was originally built on their land. Goodness only knows how it came to be the retaining wall for us! It's not high - about waist height. I really don't want to get into a legal battle, I just want to replace a dodgy wall that's falling down!

If the neighbouring property had the wall constructed so they could level their plot then normally they would be responsible for the wall unless something else was agreed.  Ideally you should get the ownership/responsibility sorted out now (even if that means legal expense) as once the 'evidence' has been demolished and you've paid for a new wall, the argument will effectively be lost.

Have you had quotes for the job yet, do you have a feel for how much this is going to cost you?

Also, unless the SE has suggested piling or a very complex design, part of the foundations for the new wall will extend past the neighbour's side of the wall.  Have they agreed to foundations being on their land? Given how things have progressed so far it wouldn't surprise me if they turn round and expect the foundations to be wholly on 'your' land - which would mean you spending a lot more on the wall, or losing more of your garden.

What is access like?  Will the builders be able to bring excavators etc into the neighbour's garden to do the work?

Bendy_House

As explained, it's the retaining wall for 'you' IF the natural, original ground NEEDED to be retained. OR, if YOU levelled YOUR side by RAISING the ground on your side.

It is NOT 'your' retaining wall if the neighb excavated the level from THEIR side.

If all the land was on a steady natural slope that wasn't moving (like most land), then all that would be needed is a boundary fence, not a retaining wall. Once these levels are changed, then it often happens that 'retaining' is required. Who is responsible depends on who does the levelling. 

You could argue that if BOTH parties alter the level to some degree - eg you upwards, and they downwards - then that should be a 'shared' responsibility. It would strike me as reasonable for this to then be a shared cost, and straddling the boundary line. 

Are the other houses on your road also on a slope? What is the boundary on your OTHER side - is there a retaining wall there?

Anyhoo, unless you do want to delve deeper - ie gently into legal territory (this does not mean a 'battle', but just getting legal advice on the facts of the situation) - then I guess you just need to make a decision. If your decision is to build the wall and fully on your side, then I thing it's perfectly reasonable to let the neighb know you are doing this without prejudice, as it's not obvious whose 'actual' responsibility this is (the fact the wall was almost certainly built by the neighbouring property suggests that it was the builder of THAT property who altered the ground level = it's THEIR responsibility), but - for the sake of neighbourliness - you'll take it on and will have it done as soon as they remove the old one...

I suspect you actually a very good case for it being 100% their responsibility, but that would need advice.

I think your neighb would be unreasonable to not compromise on this - if you offer to build the wall, then they should be delighted to accept the existing line - the new double-thick wall would straddle evenly.

sammyjammy

Probably very different given the height of said wall but I live in a house where there is a retaining wall between me and my neighbour.  We live on a very steep hill and the retaining wall is around 3m high, their garden is around 2m higher than mine, if that retaining wall were to fall it would cause a massive landslide, the wall is their responsibility and is built on their land (albeit 2m down)

Bendy_House

The more I think about this, the more it seems evident that this retaining wall was built for the benefit of your neighbour's house, by their builder, at the time of the house build.

It might be tricky to determine this for certain - say, whether your house was built first, and the natural slope of the ground at that point made a retaining wall unnecessary (eg your garden just continued to slope away gently and harmlessly towards your neighbour), and the wall was only required when the next door house was built. But it's clear it was built FOR the neighbouring house, almost certainly so that the builder could then have a level plot to build on. Ergo -it's fully their responsibility.

Phone up your LP and get advice on this. Armed with what I think might well be positive information, you can then approach your neighbour and explain the situation. If you are still willing to have this wall built at your expense, then the very least you expect is (a) you share the width, and (b) they pay for clearing away the existing wall. The alternative is that they just get on with it.

If they try and launch a claim, that's what your LP is for, and I suspect they haven't a chance, given the info you've provided.

(Legal Protection is much better at 'defending' than 'claiming'. Ie, provided it's valid, they will always 'defend'. They are more reluctant to 'claim' - it has to be a more clear case. So, in situations like this, I'd let the neighb make the first 'legal' move - if they are daft enough to).

I know you don't want to go 'legal' - I don't blame you. But you should get advice from your LP at least - that costs nothing, and has no detriment. And if they say you are on solid ground (fnurrrr), then you can be equally clear to the neighb what they are missing out on, and getting themselves in to. It's up to them to get back to you - in a suitably contrite manner - and take you up on your extremely generous offer.

NB: Unless it mentions it specifically (and I bet it doesn't), the 'responsibility' for boundaries in your deeds are just a general "That's 'your' side to look after, pal" type of thing that most folk have. Most deeds don't even insist you must put up a fence.

arielsmelody

Thank you! Unfortunately along our road the houses are all cut into the hillside and over time everyone has dug away or built up so all the plots are higgledy piggledy and the people who originally built the houses are long gone. I suspect next door dug their side out a bit and the ground on our side gradually raised up a bit over the years but there is no paperwork. To me a double thickness wall that straddles the old boundary line is a fair compromise. The cost is "a lot" because we have to dig new wider foundations - mainly on our side, but luckily the neighbour is not fussing about the foundations coming onto his side. I'm resigned to spending the money because it needs doing so that's not the biggest issue. But I would prefer not to spend extra to dig  away an extra 100 mm for the entire length of the wall, obviously!