Retaining Wall Dispute

[Tungo23]

Need some help and advice on a retaining wall issue.

We have a retaining wall (RW) on our boundary which has collapsed and is encroaching onto our property. The RW is in place to support our neighbors driveway which is on higher ground than our property. We are wanting to fence along this boundary but can not proceed until the RW is repaired. We believe that our neighbor should repair or replace the retaining wall but they are not interested in doing anything. How can we force the neighbor to repair the RW before the driveway it supports completely collapses and could cause serious injury and further property damage.

Cheers Tungo

[artemis]

The first thing is to determine who is legally responsible. and whether the Fencing Act is relevant to your situation. If you google "retaining wall responsibility between neighbours" there are quite a few good responses from lawyers and others, including some here on Propertytalk.

[drelly]

Inform the council about the dangerously unsafe driveway.

[Bluekiwi]

Inform the council about the dangerously unsafe driveway.

I almost bought a house with same situation and I would have owned the offending property.
But a 25k retaining wall issue.

I had a good talk with both sides and chatted to retaining wall people and my friend who is a lawyer and small claims adjudicator.

I cant remember the technical detail but affectively their land is encroaching on yours / tresspassing almost.
It is their responsibility to fix.

Explain that to them and ask for a timeframe for it to be fixed.

p.s. Oh yeah the council thing. If they say no, sort of drop a hint that you will need to go to council to ask for clarification on some points. Note that threatening to go to council if they dont fix it, is blackmail so treat carefully.

Make sure you diary and document all this, take a friend as witness, or also put in writing.
Basically getting all your ducks in a row for when you have to go to small claims

[Maccachic]

Are you sure they have built up and your driveway was not cut out? And that it is not in fact your wall to fix?

[Tungo23]

Thanks for the replies.. The fencing act does not cover retaining walls so can't use that. I've tried the council who told me because it was a private RW on private land and they couldn't help. I think it falls under encroachment under the Property Law act and we may need to go to court to have this resolved.

[Tungo23]

We have no driveway along this boundary, only our back yard. The neighbor owns a house at the bottom of a shared driveway along with 3 units.

[Leftette]

What I don't understand is how can the failure of your retaining wall, causing an encroachment of their land be their fault?

The failure is in the wall, and all walls have a life span. What's to stop someone building a poor quality wall to force the situation, getting the encroacher to pay for a better wall? Extreme example, of course, but you get my point I hope.

[Wayne]

What I don't understand is how can the failure of your retaining wall, causing an encroachment of their land be their fault?

Did you read this bit?
The RW is in place to support our neighbors driveway which is on higher ground than our property.
It was built for the benefit of the neighbour.
Or that's how I read it.

[Leftette]

It might well be the case, but if the retaining wall was equally built to allow for a flatter spot on which to build their place, or they get enjoyment for the flat spot created below the wall, couldn't it be argued that it's for their benefit too?

Id' say it depends fundamentally on which party BUILT the wall. They are responsible.

[Wayne]

It might well be the case, but if the retaining wall was equally built to allow for a flatter spot on which to build their place, or they get enjoyment for the flat spot created below the wall, couldn't it be argued that it's for their benefit too?

Id' say it depends fundamentally on which party BUILT the wall. They are responsible.

You could argue that but it would depend on the natural ground level (which may be very unclear as time moves on).
Did you google as suggested?
The 1st link was a very detailed article from Aus but, I expect, fairly applicable to here.
Fundamentally it depends on the natural ground level and who benefits.
Clearly if the wall supports the neighbours drive they can't just ignore any responsibility!

[ivanp]

Even if the retaining wall is built right on the boundary, any retaining wall that supports a drive way requires a building consent. Therefore there is a building consent and (hopefully) CCC in someone's property file. So, the one who has these in the property file is the owner of the retaining wall, and therefore responsible for its maintenance. Right?

[ivanp]

Fundamentally it depends on the natural ground level and who benefits.
Clearly if the wall supports the neighbours drive they can't just ignore any responsibility!

As I mentioned above, there must be a building consent lodged by some party, therefore the retaining wall belongs to that party (and is built on the land owned by that party). I can't see how this party could be different from owner of the driveway - that just doesn't make sense.

[DIY Donz]

Not if the wall was built 25 years ago! I'm navigating the same situation but my property (and driveway) are at the top of the wall. The wall was built some years before my house and the section were developed so it could be argued that the wall was built to level the neighbours back yard (and yes this would tie in with the natural lay of the land). My house was built in 1992 and that was also before resource consent and CCC were requirements. Therefore there is no information on the property files (either my property or the neighbours). My lawyer is adamant that the wall is half share (we've had it surveyed and it's right on the boundary) but it seems that retaining wall issues are not clear cut. Fortunately this one is not falling down yet but it straddles a sewer/wastewater pipe and this section of the wall was poorly executed so needs repair. When the neighbour first approached me about it (remember I can't see it from my property) she said it might all be at her expense to which I replied that as far as I was concerned it is a boundary wall and we would share the cost. It seems she now thinks I should pay for it all....

[John the builder]

where is the bdy and which side of the line is it on?