Expert: Bruce E. Johnson - 9/23/2011

Question
QUESTION: I recently built a new contraction home in which the builders responsibility is solely everything with in the foundation. Along with that, the builder is responsible for clean up of any land disturbed by excavation ( rough grade around the house). Well my lot from left to right had an approx. 12 ft fall. The contractor had the lot excavated as such that left a 9ft drop on my property beside the left of my home, which now needs a retaing wall. I am told that the purposed retaining wall need to be 9 ft high and 60 ft long of reinforced concrete so that the above neighbors foundation isnt compromised, due to the fact that the 9 foot drop is approx 10 feet away from her foundation. In the beginning the builder told me I would have wall around 4 ft. High, not 9ft. ( my side yard and the adjacent back yard on that side of the house is now 9 ft above). I also contacted two area engineers that say the site conditions were not taken into consideration when planning the home, and I could have been been a smaller wall had they considered this. Now the builder has basically walked away and said the wall is outside the foundation thus my responsibility. Even though the contractor has stated that "in hind site the could have and maybe should have done things differently". Do I in fact have to pay for this wall thats purposed price is 1/3 the price of my home?
Sorry for any gramatical errors this is sent from my I phone

ANSWER: Hi Jackie, I am not an attorney nor have I seen what your contractors original scope of work entailed.  I did have a similar situation come up many years ago when a man rented a backhoe to enlarge his side yard only to realize that his neighbors house was now sitting too close to the edge of a cliff that he created.  I had to come in and build him a retaining wall.  That being said, I can't really see how all of this came about without your knowledge.  The lots elevation was known at the time the house was designed.  If you created the problem by building it anyhow then you are probably responsible for rectifying the mistake.  Whether or not it requires a 9' retaining wall I can't say without seeing the actual conditions.  It may be possible to create a swale between the houses to handle the run off of water, you might be able to build a rip-rap wall to hold up the embankment etc.  Also the height of the wall may be able to be adjusted downward depending on the existing natural slope of the ground.  You should be allowed a foot of drop per three feet of distance and in some cases one in two depending on the soil conditions.  I wold have you consult a structural engineer for a more detailed design and have him design the least expensive fix for the situation.I hope this info helps please feel free to write again regarding this or other matters, sincerely Bruce Johnson..bejohnsonconsulting.com         

---------- FOLLOW-UP ----------

QUESTION: Thank you for your response. The only thing is, I didn't design the house, the contractor did. The same contractor shot the elevations for my lot, and prior to breaking ground we had a meeting at the lot to discuss the possible need for extra block work to build up the foundation because of the lot being on a slop. Well the contractor then told me that the slope works perfect with his plan and no extra materials would be needed. Then when the engineer I had come look at the work that was done told me the house was constructed as if the fall in elevation was only 4 feet, when actually it was 12 feet. Also in my contract the contractor is suppose to supply a 6% fall around the home for water to run away from the foundation, is that possible with my side yard which is 4 feet away from my home being 9 feet high?
Thank you

Answer
Hi again Jackie I wrote you a long response on Saturday and then somehow lost it in the nether world of the Internet.  Anyhow, let me try this again..I am still a little up in the air over your relationship with the builder and the design of this home.  Did the builder just build the foundation or the entire house?  Was there a building permit pulled?  Most building permits require an elevation detail showing existing and surrounding elevations and finish floor elevations of the house being built.  There is also a professional survey involved along with a registered plat that is submitted to the zoning department showing backset requirements and elevations along with proposed drainage. There is also a survey done to locate the house on the property and provide elevation benchmarks showing finish floor heights.  This all should have been accompanied by regular building inspections by the city or county building department.  So how your elevations got messed up is beyond me.  If your house is still in the foundation stage you might be able to raise your foundation wall on the offending side high enough to accommodate higher backfill on that side of the house to eliminate the need for a retaining wall.  There are also other waterproofing methods available that will allow you to even backfill against the framed wall of the upper level if that works for you.  Unfortunately it sounds like you have been the victim of either an unscrupulous or stupid (or both) builder and unless you have some kind of iron clad proof that he knowingly without your permission built your foundation too low then you probably have no recourse against him.  But as I said before I am not an attorney and any legal action you need to take will require one.  If you can email me some photos I will be happy to see if there are any other more reasonable fixes I can help you with to get you out of this dilemma.  Sincerely Bruce Johnson ..bejohnsonconsulting.com