Retaining walls are a common source of disputes between neighbours and the law in Queensland for retaining walls is quite complex. Unlike fences that are governed by their own legislation, retaining walls are classed as building structures without legislation clearly outlining maintenance and repair obligations.
Who is responsible for the cost of maintenance and repair?
The general rule is that a retaining wall should be built entirely within the boundary of one of the properties and not on the common boundary like a fence. This means that the maintenance and repair obligations generally rest with the person who owns the property the retaining wall is located on.
The retaining wall is usually located on the property it is primarily benefiting. This means:
– if the land was cut (ie dug out) then the retaining wall would usually be on the lower property and that owner would owe a duty of support to the owner of the higher property.
– if the land was filled (ie dirt added) then the retaining wall would usually be on the higher property and that owner would have a duty not to allow their property to erode onto the lower property.
Although good practice is for a retaining wall to be built entirely within one property, we find that a major source of retaining wall disputes is where it is built on the common boundary or where the retaining wall encroaches onto the neighboring property. This is especially the case with older retaining walls.
How do I find out who owns a retaining wall and who is responsible for the retaining wall repair?
The process to determine ownership of a retaining wall and who is responsible for its repair involves one or more of the following:
– a search of public records to identify any building approvals, development approvals or operational works approvals that indicate where the retaining wall was constructed and any cutting or filling of the land
– engaging a surveyor to carry out an identification survey. This survey will identify the exact location of the retaining wall with respect to the common boundary
– engaging an engineer to provide advice on the reason the retaining wall has failed. This is often called a ‘causation report’. Even though one person may own the retaining wall, the neighbour can still be responsible for damage they have caused. The most common example of this is poor drainage and damage from tree roots.
– having a soil test carried out at various bore hole points to determine the depth of fill on your side of the retaining wall.
– engaging a law firm that specialises in retaining wall disputes to provide advice on who is responsible for repairing the retaining wall.
Will one owner always be solely responsible?
This area of law is highly technical and each case will depend on its own facts.
The clearest case is where:
– a retaining wall has been constructed entirely within one lot due to the cutting of filling of that lot only; and
– there is no suggestion that the neighbour has contributed to the deterioration of the retaining wall in any way.
In the above circumstances, the owner of the retained lot will generally be responsible for all costs associated with the repair and maintenance of the retaining wall.
The situation becomes much more complex where the retaining wall is not entirely within one lot, the retaining wall benefits both properties (such as one being filled and the other being cut) or where a party has contributed to the retaining wall being damaged.
How do I know if the retaining wall is in my property?
The only way to know the location of the retaining wall for certain is to engage a surveyor. The surveyor will carry out an ‘identification survey’ that shows whether the retaining wall is within your property, in your neighbour’s property, on the common boundary or a combination of these.
Sometimes it gets really complex and you can have all three, like this one:
Western wall is inside the property, Northern wall is outside the property and the Eastern wall is generally on the common boundary
Can I access my neighbour’s property to maintain the retaining wall?
One of the major difficulties with retaining walls is that it can be nearly impossible to maintain and repair them without accessing the neighbouring property. This is especially true for the neighbour on the higher side.
Unless there is an easement that allows you access, you generally cannot lawfully access your neighbour’s property to maintain the retaining wall without their consent. If you are proposing to carry out works, you should ensure that you speak with your neighbour first and get their agreement before accessing their property.
For neighbours on the lower side, you should act reasonably when allowing your neighbour access to repair and maintain the retaining wall. Court’s generally do not look favourably on neighbours that have prevented access and this may have a detrimental impact if the matter proceeds to Court.
If the retaining wall dispute proceeds to Court, then the Judge has the power to make orders that require access to be granted to allow for the retaining wall to be repaired.
Can I force my neighbour to repair or replace a retaining wall?
Under the common law, a land owner has a duty, when he or she is aware or ought to be aware of a hazardous condition on his or her land which puts neighbouring land at risk, to take such steps as are reasonable in all the circumstances to prevent or minimise the risk of injury or damage to the neighbour’s property.
Where there is a retaining wall dispute that relates to a retaining wall posing a hazard, it may be possible to seek a Court order to require the retaining wall to be made safe.
My neighbour wants to take down the retaining wall. Can they do this?
So if we’ve established that the retaining wall should be entirely within one property, we now know that the owner of that property also owns the retaining wall. Does that mean they can take the retaining wall down if they want? Fortunately, the answer is generally no. Each owner generally has a duty to ensure their property is not eroding onto the neighbouring property and that they are not removing structural support.
What is the retaining wall dispute process?
You can check out a real life case study here.
What is the process to determine who is responsible for the retaining wall?
McAndrew Law are experts in resolving retaining wall disputes and determining who is responsible for the cost of maintaining and repairing retaining walls. Let us know if you are having an issue with your retaining wall and we would be happy to help. Comment below email firstname.lastname@example.org to get started.