Retaining Wall Encroachment

Added October 9, 2007 by Ilyce R. Glink and Samuel J. Tamkin

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Summary: What should you do If your neighbor has built a retaining wall that encroaches onto your property and he now wants you to provide him with an easement to cover the encroachment? Should you tear down the retaining wall instead? Or consult an attorney about setting up the easement agreement? If depends on what kind of relationship you have with your neighbor and the kind of impact this wall could have on your property.

Q: My neighbor recently extended a retaining wall for a driveway and encroached upon our property by a distance of 12 inches by 9 feet. We had our property surveyed 3 weeks after the construction and discovered this.

Our neighbor proposes that we settle the problem by providing him with an easement for this use. What would be the implications in this for us?

A: The issue you face is quite common. Frequently, neighbors do not know the exact location of their lot lines. Other times, contractors doing work for the homeowners fail to follow the property lines when making improvements to homes.

The most common problem between neighbors has to do with the installation of fences. Depending on the configuration of the lots, bushes, trees, other obstacles and the location of the home on each lot, neighbors frequently pick a line that usually ends up on one neighbor's side of the property by a couple of inches to a couple of feet.

If your neighbor had come to you to ask whether he could install the retaining wall on part of your property, would you have agreed? If you would have been fine with his request, you have nothing to lose with giving him the easement. If you would have objected, you now have a decision to make.

The easement your neighbor requests will give them the right to keep the retaining wall on your property without your ability to have them remove it in the future. If you're planning to sell your home, the easement would also make sure that your buyer couldn't require your neighbor to remove the wall.

If you go the easement route, you need to make sure that there are provisions in the agreement that state that the neighbor is required to maintain the wall and pay all costs associated with the wall. You could have a provision in the document that would require your neighbor to remove the wall in the future if it needs replacement.

A real estate attorney can assist you in the drafting of the easement agreement. Your neighbor should pay all of the expenses having to do with preparing the easement agreement and having the document recorded.

One issue that you have to consider is the impact the wall has on your property. If the impact is not noticeable, there may have been no harm done by your neighbor. If your lot is narrow and the impact of the wall is large, and having the wall could alter the value of your property, you'll need to decide how to proceed with your neighbor.

Now, let's look at the other side. Assuming that you would not have allowed your neighbor to build the retaining wall on your property, even if your neighbor had good reasons to do it that way, you can now require the neighbor to remove the wall from your property or request that he pay you a lump sum for the privilege of having the wall on your property.

You can even structure the easement agreement to have your neighbor pay you an annual fee to keep the wall on your property. If he innocently built the wall on your property, you have him in a rough spot. It probably would not be very neighborly of you to demand payment from him or to have him remove the wall, particularly if it does not impact your home, but you might have the right to do it.

You have to decide what you want to do. If your neighbor made an innocent mistake, and you charge him for the easement or make him take down the retaining wall, he could be a less-than-friendly neighbor for many years to come.

On the other hand, if your neighbor just decided to build the wall and didn't even consider whether he would be on your property, and you're not all that neighborly to begin with, you may make a different decision.

For more information on your legal rights or to draft the easement agreement, consult a real estate attorney.

Oct. 9, 2007

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