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Certainly. Do you know if the neighbours land was raised artificially or was yours lowered artificially please? I appreciate it would have likely been a long time ago but it can normally be determined from natural topography.
Thanks. there is no statutory authority or law that assists with defining responsibility for retaining walls but there is some guidance in common law decisions which point to relevant issues being how the land came to be higher in the first place-i.e. is it naturally higher or was the land artificially raised or conversely the lower land artificially lowered and responsibility of a landowner for land slip. If it is not obvious (which is not always the case) you may therefore consider that it is worthwhile retaining a surveyor to provide an opinion on the position. What is not obvious to us non surveyors is sometimes conclusively determinable though not always.
If one can show who raised the land or conversely who lowered the land, it would usually be at that stage the person raising or lowering that would be responsible for installing and maintaining a retaining wall. Fast forwarding years down the line however if the position is not made clear in your title deeds, it is not always entirely clear what transpired as appears to be the case here.
Some relevant decisions in the courts that give some guidance are Leakey v National Trust where the Trust was held liable for a landslip of soil from its land due to lack of maintenance. In Sedleigh v Callaghan some event occurring on higher land creating conditions which resulted in damages being awarded to the owner of the lower land.
The general line that is often though not univerally followed would be one of presumption that the owner of the higher land is responsible for maintenance of the retaining wall to the extent so as to prevent landslip onto the lower land unless the owner of the higher land can demonstrate that the owner of the lower land was the one that lowered his land artificially so as to give rise to the need for a retaining wall whereby the responsibility roles could be reversed. Having said that, there is no specific authority beyond the above that establish this is the way a court must determine such a dispute should it arise.
In the absence of any determing provisions in your title deeds which from what you say are of no assistance on the point, potentially obtaining some initially informal advice from a surveyor (which for initial verbal advice is usually fairly inexpensive) may be of assistance which providing the surveyor is not of the opinion that your land has been lowered so as to require the installation of the wall, you could consider approaching the neighbour with an initial claim that he has failed to maintain the wall so as to prvent landslip and resulting trespass and damage to your land. You should of course also obtain his insurance details as this should be covered by his third party liability policy if proved or accepted.
If the neighbours have covenanted to maintain the boundary with you directly this would have value but this is unlikely to be the case as I presume the covenant was made between at least on previous owner. Positive covenants (to do something) do not survive a transfer of the property ownership. Only negative covenants are capable of surviving a transfer of ownership. In order for a positive covenant to be binding it must be given or regiven directly by the present owner.
However the advantage does lie with you under the above decisions in that the land in question is higher than yours which has been seen to place the burden on the owner of that land to prevent landslip onto yours unless he can show that you lowered your land so this is likely to be your most productive approach possibly armed with some initial surveyors advice as discussed above.
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