Responsibility of Maintaining Retaining Wall. Make sure the agreement notes that the neighbor is using your land for their convenience and with your permission.

By Ilyce Glink and Samuel J. Tamkin

Q: My neighbor built retaining walls around his property about eight years ago. He recently sold the home. His retaining wall along my property encroaches onto my property by a bit less than a foot. 

The county building department just told me that I have to repair the retaining wall. They say I am responsible since the violation is on my land. 

My new neighbor brought a letter for me to sign saying that I would authorize him to make the repairs, that he could continue to keep the retaining wall where it is located and that he’d maintain it in the future. I have no issue giving him my permission, but will this cause any issue when I want to sell my house?

Retaining Wall Maintained by Neighbor

A: We like that your neighbor reached out to you proactively. He likely needs to make sure the retaining wall is in place and in good condition otherwise you could either remove the retaining wall or the lack of a retaining wall or a damaged retaining wall could result in land erosion or other problems on your neighbor’s property.

We don’t think a buyer of your home would have an issue knowing that the retaining wall will be maintained by the neighbor. In all actuality, prospective buyers would welcome knowing that the repair of the wall won’t be their responsibility.

It’s a very good idea to have the arrangement in writing. The agreement should spell out what responsibilities your neighbor has when it comes to the retaining wall. Just make sure you think through the agreement between the two of you. For example, you’d want to make sure that the neighbor takes care of the routine maintenance, any repairs and even the replacement of the retaining wall. If your neighbor fails to take care of the wall, you should have the right to cancel the arrangement and have the neighbor remove the wall. Or, you should be able to do the removal.

You should also make sure the agreement notes that the neighbor is using your land for the retaining wall for their convenience and with your permission. The agreement should spell out that you can terminate that permission in the future should you need the wall removed to make way for any other use you may have on your property.

Good Idea to Have Local Attorney Review Agreement

As you can imagine, there are likely other things you might consider or want to put into the agreement. For these reasons, and because we don’t know where you live and other issues that might flow with the topography of the neighborhood, we suggest that you have a local attorney review the agreement. We’re not suggesting that you have to go full out and put together a 50-page agreement. But you might want something a bit more formal that is reviewed by someone with local real estate law experience.

For one, we don’t want you to lose ownership of the land on which the retaining wall sits. Had your neighbor not said anything, it’s possible that after 21 years (or less in some places), the neighbor could have claimed that they used that part of your land and could claim it as their own through adverse possession. 

Also, let’s say the wall collapses during the repair or reconstruction. If someone is hurt, you’ll want to know whose insurance will cover that loss. Will it be yours or your neighbors? If you have a large deductible, will you be out that money? If you get sued, is your insurance company covering that lawsuit?

We don’t see a written agreement as being a negative when it comes time to sell your home. Still, you need to understand where the retaining wall sits and how it affects your property. Given that the wall is at the edge of your property, it’s likely that any buyer would see it as a normal boundary type issue like a fence, wall, or border item and never give it much thought.

©2022 by Ilyce Glink and Samuel J. Tamkin.