When property owners encounter retaining walls, they quickly seek answers to two questions:
1. Is this wall mine?
2. Am I responsible for it?
Because property owners have not been educated in retaining wall law, they give into mistaken instincts or friendly advice. Or, they assume — to their financial harm. Our experience shows that focusing on just a few correct facts can consistently zero in on responsibility with relative ease and accuracy.
Our 4-step analysis looks at the natural slope of the land along with prior excavating of the dirt as a telltale sign. Who created the need by altering the natural grade is more important than who built the wall. Next, property boundaries are always important, including when the city (a right-of-way) is your neighbor. And, locating historical records and old building permits completes the puzzle.
While each case is fact-specific, this framework helps to vet the most critical factors.
Step One: Excavation changes the natural slope of the land and is a crucial factor
Take a look at the natural slope of the land and it will reveal whether the retaining wall is holding back fill or holding up a cut slope. When an adjoining neighbor or city starts to excavate close to or along the boundary line and removes soil, they also remove the natural support that soil had provided to your land. Excavation may cause the sinking or sliding of the of the adjacent land. When earth is removed it deprives an adjacent landowner of critical support, so called lateral support, the excavating neighbor has a duty to to make sure the soil they cut away is retained so the adjoining land does not spill or erode into the excavated area or the street.
“A land-owner has a right to the lateral support of the soil in the adjoining street ... This right of lateral support of the adjoining soil, being a natural one, is absolute...”
Landowners are entitled to have their land supported in its natural state. This is the law, and it has been around for more than 125 years, but is not well-known to the average property owner. In simple terms, this means a landowner has the right to have land supported by the soil of the neighbor's land. Therefore, when a neighbor excavates he has a duty to provide lateral support support (retaining wall) so he does not cause damage to the adjoining landowner.
The obligation to provide lateral support applies whether the adjoining property is a next-door neighbor or the adjoining property is a public right-of-way controlled by a municipality. Failure to provide the necessary retaining wall, or maintain it, means that the landowner whose land was cut away may be entitled to damages as a result of its removal.
An uphill property is frequently owed "lateral support," or a retaining wall, by the downhill property who cut away the soil and altered the natural slope of the land. Here, the city cut into the hill in the public right-of-way during street grading and created the need for the retaining wall. A retaining wall prevents sideways movement of the dirt for the adjoining uphill property and the excavator is responsible for that support. (click to enlarge picture)
In the vast majority of the time, the downhill owner is responsible for the retaining wall for the simple reason that they are nearly always the one who graded the dirt to make the property level and thus required the retaining wall. Thus, he created the need for the retaining wall and is responsible for it. The retaining wall is of no benefit to the uphill owner. Indeed, it is a risk to him. Why would he ever agree to pay for the wall? Once built, it remains the downhill-excavator's responsibility to maintain the retaining wall or, if he ever sells the land, it becomes the successor title holder's. In the case of a municipality that graded, it remains their duty. In other words, when a municipality grades its rights-of-way to make it level for travel or sidewalks, it remains their responsibility for retaining wall maintenance in those rights-of-way.
“Generally speaking, in dealing with retaining walls, the downhill property owner frequently owes the uphill property owner the duty of lateral support. It’s a fairly simple concept that seems to confuse homeowners. It even eludes many public works engineers and city attorneys.”
In most cases it does not matter who installed the retaining wall. Property owners often get hung up on this point, but is it not determinative. It is who created the need for the wall as a result of grading or excavating that is the responsible party for the retaining wall. The majority of the times it will be the downhill owner who graded, but there are unusual cases where the uphill owner graded to level his property and back filled it and his work necessitated the retaining wall or support along the property boundary. This is a rare scenario and more likely to occur when a developer undertakes an expensive process of backfilling and compacting the uphill property, such as for a commercial parking lot. Most people don't have the kinds of funds to level their yards. The principle to keep in mind is who created the need for the retaining wall. Most often, start by looking at the slope and you are likely to find the downhill property graded and is likely to have created the need for the retaining wall.
Step Two: Survey of the Property
Surveys show legal boundaries and are always important, and should be used in conjunction with how the earth has been excavated. It may be necessary to have an accurate licensed survey to show the boundaries and the exact location of the retaining wall. Prior surveys can be off by small distances or a structure, such as a retaining wall, may have been built without first checking property boundaries. "I've seen many old surveys where the markers were just wrong and ended up causing confusion. It's a good idea to start with a reliable survey. And, lots of times landowners build without obtaining a survey because they believe they know the boundaries. This can lead to big headaches later," says real estate attorney Brett Wiese.
Property boundaries are always important, but first look to who created the need when a retaining wall is around a boundary line. That is going to be whoever graded or excavated. Combining these two factors will get you fairly far.
Municipal Rights-of-Way or Alley
When a private property borders a street, the city is your neighbor. Within or along municipal rights-of-way (ROWs), cities often owe a retaining wall (lateral support) duty to adjoining private property owners if the wall was necessitated by city excavating or grading. The grading may have been decades ago when the streets and sidewalks were laid. Private property owners include homeowners, multifamily, churches, hospitals, cemeteries, or condominiums. The private properties are usually uphill from the ROW, the wall may abut a public sidewalk, alley or property line, and city street or sidewalk excavating changed the natural slope of the land. This is a commonly misunderstood responsibility on the part of both homeowners and municipalities, and homeowners pay — or are wrongly ordered to pay — to repair walls that are not theirs.
Step Three: Finding Documents
Locating the relevant old building permits and historical documents is the last step to completing the picture, but can be most time consuming. On newer real estate developments it is easier because building plans, records and permits will be on file and accessible at city offices. With older real estate that was platted and built a hundred years ago, digging for plans, permits and inspection documents can be like trying to find a needle in a haystack. Many times documents are only in hardcopy and are not easily searched online, and very often these documents may have been archived and stored in various locations outside of city hall.
It requires a diligent researcher to piece together enough supporting historical information to determine who did what and when. You may need this this type of information to "prove" your case to a neighbor or to contest a municipal case. Documents will demonstrate that the excavating was undertaken by a particular property owner and created the need for retaining wall support to the uphill property, or that a property owner backfilled and created the need for a retaining wall.
Step Four: Permit Required?
Permits are the least important important factor of those we have outlined. It's surprising how often a landowner obtains a permit to build a retaining wall (or fence) and the retaining wall was not theirs to build or not on their property. Yet, it's equally possible the rightful landowner-excavator obtained a permit and you can use this information in partnership with excavating information, the duty of lateral support, and property boundaries.
There is a four (4) foot hurdle to clear before a property owner needs to obtain a permit for a retaining wall. The Minnesota State Building Code, which is adopted by all municipalities in Minnesota, requires a permit for all walls over 4 feet in height (from bottom of footing to top of wall). All permitting and inspection records should be available to the public for viewing in city offices.
Small retaining walls between 1 and 4 feet don't require a permit because they are not structural risks like bigger retaining walls and are not generally considered to constitute a hazard to life, health, safety or welfare of the public.
Illustrative Photos
(click on photos to enlarge)
All elements present in this property: Downhill property (City) is likely responsible for this retaining wall when it needs repair. Street excavating appears to have necessitated the retaining wall to install the public sidewalks. And, property boundaries show wall in the City's exclusive right-of-way as noted by yellow property lines. Thus, City would owe a duty to the uphill property owner.