Browse Forums General Discussion 1 Aug 01, 2012 11:28 am Retaining Wall issue: We have lived in our house for 6 years and we thought we had a great relationship with our neighbour, till one day I get the mail out of the letterbox and suddenly she or her lawyer is demanding we replace our shared retaining wall and we pay for the whole thing! She is also demanding we discuss replacement of the small retaining wall and fence between our two properties which runs from the footpath to where the large retaining wall starts half way up between the two properties. We live on the high side with our house built into the slope, she lives on the low side. The 3rd level of our yard has had some fill to level it out but it is quite obvious that her land has been cut. Contour maps of the area before it was subdivided does not show any dramatic drops of land up to 3m - the tallest part of the existing retaining wall is 2.8m. So now we are in this horrible situation. We have offered several times to negotiate to repair or replace the wall but she won't even respond nor is she open to discussion. Last week we had the boundary line surveyed at great cost to ourselves. The report just received says the front retaining wall and old wooden fence are on her side of the boundary so I don't think we should have to contribute to that cost. The report also says that the front of the big retaining wall is 30cm on her side of the boundary and the supporting posts and parts of the retaining wall fall between 50 and 60cm on her land. The base of the wall apparently sits on the boundary line but the rest of it sits on her side. BCC has no evidence of who built what back in 1978. Does anyone have an opinion on whose responsibility the wall would be? We are happy to contribute but we think she should too but she is adamant she shouldn't. Thanks. Re: Responsibility for retaining wall 2Aug 01, 2012 12:09 pm A quick chat to your solicitor will point you in the right direction although I think you are in the right here and the bulk of the costs in my opinion should come from your neighbour. Stewie Re: Responsibility for retaining wall 3Aug 01, 2012 12:48 pm Thanks Stewie, our solicitor is doing very well out of us at the moment. He (her solicitor) seems to be telling her not to negotiate with us at all. Very frustrating! Looks like we will have to take court action, this is not a small job, up to $50K. Re: Responsibility for retaining wall 4Aug 01, 2012 2:31 pm Where is the fence in all this? If its on the correct boundary line then it would be her responsibility to fix the retaining wall i would think. If its on top of the retaining wall i would be keeping that survey report to yourself as she is going to demand you give her land back, and rightly so as i would want it as well. As for who would pay to correct the boundary line, i guess you could offer to replace the fence and have it positioned properly and then it would be up to her to fix the retaining all anyway. Hopefully the fence is the ceaper option Or have i read your post wrong? Re: Responsibility for retaining wall 5Aug 01, 2012 10:41 pm There is a fence on top of the retaining wall. Originally there was an old wooden fence which started to fall down. At the same time that we were discussing replacing the fence, our neighbour mentioned she wanted to fix up the bottom retaining wall - which we have now discovered is all on her land. So in 2008, she suggested we pay for the fence to be replaced and she would pay for the bottom bit to be fixed as she had firm ideas of how she wanted it to look. So we paid for the fence. She still hasn't fixed the bottom part of the wall - surprise surprise! So the fence sits on top of the retaining wall, the base of which sits very close to the boundary line according to our surveyor's report. Its the rest of the wall i.e. the other three quarters of the wall which is all on her land. Does that make it any clearer? Thanks. Re: Responsibility for retaining wall 6Aug 02, 2012 8:41 am I'd say she's taking the legal route to scare you into paying for it. Obviously a very nasty person, I feel for you having to live next to a neighbour like that. A word or two about this. It's obviously a typical litigation affair, it's nothing new to see people attempting to involve the law to get what they want. Simple fact is, these almost never go to court. The amount of money involved just isn't worthy of it. You'll need to get yourself a solicitor who will write a counter offer letter, then the litigation begins. The saddest part of this? It's likely that you and your neighbour will have to come to an agreement and both pay for it either way + the legal costs. Result? Ruined friendship and an overly expensive exercise that could have been avoided with a little communication on your neighbours part. My current philosophy regarding society after 33 years of living - Everyone is an idiot until they prove otherwise. What other conclusion can one come to?? Re: Responsibility for retaining wall 7Aug 02, 2012 8:47 am Yes I agree with you. Our solicitor has made an offer - twice. No response. We have written to her imploring her to talk to us, that we are happy to negotiate. We told her we don't want to take the next step because that will involve both of us engaging barristers. Her response - she sent our letter to the council. Not sure why? All she can see is a retaining wall retaining our land, she refuses to look at her own block which has been cut. But if she looked over the fence as she has been doing when it suits her, she will be able to see the surveyors pegs which will tell her the wall is on her land. Re: Responsibility for retaining wall 8Aug 02, 2012 10:12 am I always thought that the retaining wall was the responsibility of whoever has changed the natural contour of the land, so in this case if your neighbour's property has been cut in, then it's wholly their responsibility. My parents (who live on Brisbane's south side) just went through this recently with their back neighbour - the retaining wall/fence which was over 30 years old was falling apart. My parent's paid for half of the cost of the fence replacement, and the back neighbour paid the full cost of the retaining wall replacement as it was his property that had originally been built up. Re: Responsibility for retaining wall 9Aug 02, 2012 10:57 am "The responsibility for the erection of the wall rests with the person who excavates or fills their land. It is not up to an adjoining landowner to contribute to the costs of a retaining wall, unless the wall is a common wall to support both cut and fill, for the benefit of both properties, on the common boundary." http://www.abis.com.au/retaining-walls Re: Responsibility for retaining wall 10Aug 02, 2012 11:02 am That's fine, but when there are now records with either homeowner nor the Council and everyone has a differing opinion as to what may have or actually did happen way back when the wall was originally built 35ish years ago, what does one do then? Both parties are receiving benefit from the wall. We are happy to go with the argument that the wall is benefiting both properties, even though the wall is on her land. Re: Responsibility for retaining wall 11Aug 02, 2012 11:24 am To be honest I wouldn't worry about it then. You've made every opportunity to communicate (playing her way), so leave it be. I'd imagine her conversation with the solicitor was something along the lines of, "well, the letter didn't have the effect we thought, what do we do now?". Something else. Lawyers / Solicitors don't care. No matter how illogical or trivial a complaint is, they'll keep playing the game as it means additional $$$ for very little work. Hence the cockroach tag. Re: Responsibility for retaining wall 12Aug 02, 2012 12:40 pm I would lose the idea of you benefitting and turn it into a case of her land needed to be excavated to build her house so it is her responsibility. That is of course if the above comments are true and that is the case with your block of land. Re: Responsibility for retaining wall 15Aug 02, 2012 11:44 pm I am no expert but I would have thought that only a statutory body (the council) can compel you to fix the wall. If she takes it to the council you have the report that shows clearly the wall is on her land and there for her responsibility to fix. The fact that it is on her side shows that it was built as a result of the cut. They are my thoughts anyway. Building in Blackwood Park 2012/13 Land settled 8/8/12 Contract signed 6/11/12 Encumbrance approval 24/12/12 Development Approval 24/4/13 Slab Poured 8/7/13 Re: Responsibility for retaining wall 16Aug 03, 2012 10:45 am This is an SA site, but it might help. http://www.lawhandbook.sa.gov.au/ch30s04.php In my situation I would be house "B" and neighbour in question is house "A". Quite straight forward except the wall is 250mm on my side and he claims because it is on my property it is mine, and totally mine to repair. I would accept it is mine as a secondary wall but that means there is no wall on the boundary and he has to pay for building one. So we are at a stalemate with his soil falling into my garden but he doesnt care because being on the high side he never sees the wall PS I should highlight that in the diagram on the website the dotted line would be much lower indicating no cutting on my side Re: Responsibility for retaining wall 18Aug 03, 2012 9:51 pm You will need to upload it to something like photobucket.com Once done if you hover over the picture it will pop up a window with some links in it. You need to copy the one with the around it. Paste it to a reply on here and it will show the picture Re: Responsibility for retaining wall 19Aug 04, 2012 5:48 pm Sorry can't use photobucket so we have probably come to the end of this discussion. She has been to the council and we now have been issued with a show cause notice to have it repaired. We can only hope that once council sees the surveyor's report, they agree with us that it's on her land and she should contribute. We are happy to go 50/50 which a lot of people wouldn't offer to do but considering the updated quote I received this week was $48K, she should accept our offer. Thanks for all your help. Re: Responsibility for retaining wall 20Aug 04, 2012 7:22 pm Has an Engineers inspected the retaining wall and deemed it structurally unsound? That would have been my first action. Like others have said if she has altered the natural ground level so that the retaining wall is no longer sound then that is not your issue. the conduit would need to be undamaged regardless of what network is in play. The conduit needs to be able to have fibre run through it. NBN and Opticomm are just… 4 2882 Thank you again Simeon.. I will call my certifier for that. Have a good day 4 5179 |