Expert: Daniel Humphrey - 2/3/2008

Question
who's responsible for retaing walls, the person who's property is being retained, or the person who's property is in jeopardy of a landslide encroaching on their property?

I built and paid for a $60,000.00 concrete retaining wall that retained my neighbor's hill and driveway from sliding into my backyard.  We had a verbal agreement to share the cost.  He was given a bill and said he never agreed to sharing the cost.  When he agreed, there was a witness and he did give me $5,000.00 "as a gesture", but, that is all he thought it was.  I have taken out a loan on my house to pay for this project that was completed in Aug. 2007 and I need money to pay this loan back.  What can I do to collect from my neighbor and who is legally responsible?  I offered to share the cost, had the engineering and work done and believed I had an agreement w/ my neighbor.  Please advise.  Now almost a year has elapsed since its completion and he is not taking any responsibility for the 8' retaining wall I had built to stop his land from sliding onto my property.
Thank you so much and I look forward to a reply.  I live in California.
Sincerely, N

Answer
Dear Nomi,

I'm not familiar with California laws on property disputes concerning things like retaining walls and driveways, which in some municipalities are treated specially. As a contractor involved in projects like this, I do have a few insights that might help.

In most construction projects, the person who undertakes and owns (or has full lien of) the project has full liability. This would be the homeowner if he or she is operating as his or her own contractor; or this could be the contractor, if he still has complete responsibility for the project and a lien by contract. The way this has worked out in the few legal disputes I've observed is that the costs and liability for a project ultimately belong to the person in control.

If you want to share costs and liability, this should be arranged by legal contract; I'm sure you would agree it would obviously be unfair to enforce costs or responsibility onto a third party who had no control over the planning and scope of the project, no matter how small or large the project might be. If a person comes in later and wants to give money toward it in exchange for joint ownership, or even as a gesture of good will and gratitude, that would be fine, but any agreement to share costs should be recorded in a legal document whenever permanent improvements to real property are involved.

A verbal agreement with the neighbor to share costs before a project begins might work just fine for something small or impermanent, but in projects of this scope, it's best to jointly contract and both be involved in the planning and execution, for exactly the reason you illustrate. As the project develops, the costs and scope usually expand beyond the original concept, and you want all parties on board.

Good luck, and I hope this doesn't hurt your relationship with your neighbor, who is very fortunate to have you as a neighbor who placed that retaining wall there for your mutual benefit. Personally, I feel that happiness can only come from relationships, and the relationship you have with your neighbor is ever present and long term. It's most important that you get good feelings when you look up that direction toward that nice retaining wall and not bitter ones.

Daniel