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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Joshua, I have a question about a retaining wall and

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Hello Joshua, I have a question about a retaining wall and the responsibilities for its maintenance following a collapse.
I am the landowner of the garden below the wall and the neighbour owns garden land above the wall (there are no buildings on the land above the wall).
The wall forms the boundary between the properties and retains the neighbours land (it's approximately 3m tall).
The deeds on both sides from the land reg are silent as to the exact position of the boundary and as to ownership. However, there is a covenant stating that unmarked boundaries are the joint responsibility, but this is only in the transfer of the neighbours land from a third party. The title plan for the transfer of the adjoining land shows boundary ownership T marks on the other boundaries but not the one in question.
It is clear from the age of my property, that the wall has been in place for over 100 years and the land above it has been supported for in excess of 50 years, therefore I am assuming that there is a right of support for the neighbouring land.
It is unproven as to the cause of the wall collapse, it could be said that trees growing on the neighbouring land have contributed to the problem, but it would not be possible to show that they are the sole cause.
My question is, can the covenants in the land transfer for the neighbouring land be relied on to force the neighbour to contribute to the costs of repairing the wall?
Is there any case law that generates a precedent on contributing to the repair & maintenance of a wall that the neighbouring land benefits from? Would this come under the doctrine of benefit ie Halsall v Brizell?
Many thanks for your advice, I am trying to ascertain a complete picture of my legal position before approaching the neighbour.
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

My apologies for the delay in responding to you. I have not been online for the last couple of days. Do you still need assistance with this question?

Customer: Hello yes I'd still be grateful for your assistance
Joshua :

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.

Customer: It's pretty difficult to determine, as its part of the natural topography and I would suggest that it's a combination of both. The land below (ours) would have been levelled off and I assum the wall built at the same time as the property retaining some of the neighbouring land in approx 1840. The neighbouring land has also
Customer: been built up over the years and is certainly higher and more level than it was at the time of the walls construction.
Joshua :

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.

Joshua :

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.

Joshua :

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.

Joshua :

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.

Customer: Thank you, ***** ***** neighbours covenants to maintain a joint boundary have any standing in this?
Joshua :

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.

Joshua :

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.

Joshua :

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.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Joshua :

Have I been able to help you with all your questions on the above?

Joshua :

Is there anything above I can clarify for you?

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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