Boundary disputes and questions over boundary responsibility often come at a very high cost with sometimes very little reward, so it is important to establish who has responsibility for a boundary.
We have previously written a blog setting out the legal basis for establishing boundary responsibility but what happens if there is a retaining wall between two properties?
What is a retaining wall?
A retaining wall is a wall that is designed to hold back retained earth and withstand the weight of any load imposed by buildings or objects behind the wall, so for example if your house is built on a hill and your neighbour’s house is above you then it is quite likely you may have a retaining wall supporting part of their garden while your property sits below.
Retaining walls are still boundary structures and they can vary from a relatively small wall supporting a stepped garden to a massive structure such as a cliff face which may then support a property above.
Who is responsible for maintaining a retaining wall?
With any question about boundary responsibility the first place to look is the Land Register/deeds. This may set out whether a specific party has responsibility for that structure including retaining walls. The general rule is that if the Land Register/deeds are silent about boundary responsibility i.e. they make no reference whatsoever to who is responsible for the boundary, then the boundary can be considered as a party boundary and as such it is to be repaired and maintained at the joint and equal expense of both parties.
This position is different however when there is a retaining wall. It is generally accepted that the person whose land is retained by the wall is responsible for its repair and maintenance. If we go back to the example we gave previously if your property is based on a hill and your neighbours garden is supported by a retaining wall above your property, that would mean it is their responsibility to maintain that wall.
There are some exceptions to this general position however if the landowner of the lower land to a retaining wall has excavated a way to his own land to provide a lower but level area or if the owner of the land on the lower part of the retained wall had undertaken repair works that can indicate they have assumed responsibility for maintaining that retained wall.
In the majority of cases where a wall retains or supports a public highway then it is the responsibility of the highway authority. Retaining walls are classed as the highways responsibility if to support the highway and, if the retained height is more than 1.36 meters or more and if they are both above and are within 3.66 meters of the highway.
What if the retaining wall collapses?
If the retaining wall collapses then the person who is responsible has a duty of rebuilding this, however if the land that was supported by the wall is damaged then there is likely to be a claim for damages against the owner of the land that was supported.
It is always prudent to check with your insurer to make sure your buildings insurance covers a retained wall and landslide/landslip. It is also important to note however landslip is often treated differently by insurance policies.
There is a case of Oddy v Phoenix Assurance Co Limited (1966) where the judge at the time defined landslip as a small landslide which involved rapid downward movement under the influence of gravity of mass rock or earth on a slope.
Most insurance policies will only cover landslip if it causes damage to the retained wall and buildings. It is important to note the difference here because it is separate from if the retained wall failed due to long term deterioration.
In that particular case, the cause of the damage was the failure of the wall as opposed to landslip. The reason we are making this point is it is very important to check with your insurers to see what your policy actually covers, because there is quite a distinction here between a retained wall giving way through deterioration and lack of maintenance and an accidental event such as landslip or heavy rainfall causing the land to unexpectedly slide irrespective of the quality of the retained wall.