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.
– engaging a law firm that specialises in retaining wall disputes to provide advice on who is responsible for repairing the retaining wall
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.
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.