[WSBARP] Responsibility for maintaining retaining wall on property line

[Mark McClure]

I was thinking of a case I had where the “uphill” property was one that
comprised 2 feet of fill raising it above the adjacent property and the
contractor who developed the uphill property designed and built the
original retaining wall.  Different.





*Mark C. McClure* *| *
*Managing Attorney *Law Office of Mark McClure, PS

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*From:* wsbarp-bounces at lists.wsbarppt.com [mailto:
wsbarp-bounces at lists.wsbarppt.com] *On Behalf Of *Rod Harmon
*Sent:* Monday, October 28, 2024 3:42 PM
*To:* WSBA Real Property Listserv
*Subject:* Re: [WSBARP] Responsibility for maintaining retaining wall on
property line



The downhill property has the duty to support the uphill property.  The
land in its natural state does this naturally.  What happens when the
downhill owner cuts into the natural slope to increase his usable (level)
land?  He then has to provide artificially whatever support the natural
slope provided.   That means building and maintaining a retaining wall.



This becomes complicated if the uphill property is improved.  Did the
improvements cause the land to subside?  Would the land have subsided
regardless of the improvements?  The downhill owner is not required to
support the additional weight of the uphill owner’s improvements.  Who has
to prove what?



All of this has been worked out by the courts and is well summarized
in  *Evarone
v. Lease Crutcher Lewis*, 167 Wn. App. 1009 (unpub. 2012):



“The right to lateral support of real property is “well established” in
Washington. Klebs v. Yim, 54 Wn.App. 41, 44, 772 P.2d 523 (1989). In Klebs,
we reasoned that when the plaintiff's land is burdened by heavy structures
such as buildings, the plaintiff must show not only that the defendant's
acts caused the plaintiff's land to fall in laterally, but also that the
land would have fallen in without the weight of the structures or other
improvements:“An adjoining [land] owner who causes his neighbor's property
to slide and slip because of loss of lateral support is liable in damages
resulting therefrom under the constitution and law of the state regardless
of negligence. However, the sliding and slipping of the soil must occur
because of its own weight and not because of the superimposed weight of the
buildings or improvements placed thereon.”Klebs, 54 Wn.App. at 44
(alteration in original) (quoting Simons v. Tri–State Constr. Co., 33
Wn.App. 315, 319, 655 P.2d 703 (1982). The plaintiff has the burden of
establishing that the land would have subsided even without improvements.
Klebs, 54 Wn.App. at 47. At common law, the right of the owner to damages
for loss of lateral support in the absence of negligence extended only to
the land in its natural state. However, under the constitution, the owner
is entitled to damages not only to the land in its natural state but also
to the buildings and improvements on the property once it is demonstrated
that additional lateral thrust from the weight of the improvements has not
precipitated or caused the damages.Simons, 33 Wn.App. at 319–20 (emphasis
added). Fill is “an artificial structure or condition” to which the right
of lateral support does not extend. Bay v. Hein, 9 Wn.App. 774, 776–77, 515
P.2d 536 (1973).”



See also 17 Wash. Prac., Real Estate § 10.4 (2d ed.).





Rod Harmon



*RODNEY T. HARMON*

*       Attorney at Law*

         P.O. Box 1066

      Bothell, WA   98041

     Tel:   (425) 402-7800

     Fax:  (425) 458-9096

    www.rodharmon.com

   rodharmon at msn.com



*From:* wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
*On Behalf Of *Jon Fritzler
*Sent:* Monday, October 28, 2024 2:52 PM
*To:* wsbarp at lists.wsbarppt.com
*Subject:* [WSBARP] Responsibility for maintaining retaining wall on
property line



Fellow listservees,



Wood retaining wall that is on the property line between two residential
properties is beginning to fail and lean toward the downhill property.  Is
it the sole responsibility of the owner of the uphill property to pay to
have the wall repaired or replaced or do the owners share responsibility as
they would with a fence?  Does it matter if the owner of the downhill
property was the owner of said property when the wall was installed while
the owner of the uphill property purchased the property after the wall was
installed by the previous owner?



Jon M. Fritzler

Attorney at Law

11015 NE Fourth Plain Blvd., Suite D

Vancouver, WA 98662

Tel. 360.818.4431

Eml fritzlerlaw at outlook.com
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