[WSBARP] Responsibility for maintaining retaining wall on property line

[Rod Harmon]

Same principles.  Fill is an improvement that adds weight to the uphill property and could cause the subsidence.  Issue of fact and a matter for expert opinion.
Bay v. Hein, 9 Wn. App. 774 (1973)
Klebs v. Yim, 54 Wn. App. 41 (1989)

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<http://www.rodharmon.com/>
   rodharmon at msn.com<mailto:rodharmon at msn.com>

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Mark McClure
Sent: Monday, October 28, 2024 4:24 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Responsibility for maintaining retaining wall on property line

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
"Why Retire With Debt?"
1103 West Meeker Street, #101
Kent, WA 98032
Office:  253.631.6484 (Leave Msg - Will be returned within 24 hours)
Email: Mark at McClureLawGroup.com<mailto:Mark at McClureLawGroup.com>
Web: www.McClureLawGroup.com<http://www.mcclurelawgroup.com/>
Notice of Unavailability:  November 27, 2024 - November 29, 2024
**NOTE** All visits must be scheduled in advance for access to the building.  Call 253-631-6484  to schedule.
CONFIDENTIALITY NOTICE: This email contains legal stuff. If you are not the intended recipient you could get into a lot of trouble if you read it, and even more trouble if you tell someone else about it. So, the best thing to do is ignore it and forget you ever saw it. Thank you.
Corporate/Trust Law News:
FINCer Notice:  Deadline:  12/31/2024:  A Beneficial Ownership Information Report (BOIR) under the Corporate Transparency Act (CTA). The CTA requires certain types of U.S. and foreign entities to report beneficial ownership information to the Financial Crimes Enforcement Network (FinCEN), a bureau of the U.S. Department of the Treasury. If you have an Interest in a Business or Trust - this may apply to you!
Civil penalty. Any person who fails to comply with the registration requirements may be liable for a civil penalty of up to $5,000 for each violation.  See https://www.fincen.gov/penalties.
Video Explaining More here:  https://www.youtube.com/watch?v=4qXv37hf4Dw.
You  can file your report here:  https://boiefiling.fincen.gov/.
NOTE:  If you would like our office to handle your current reporting requirements, we can do so for a flat fee of $1,000 per entity.

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto: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<http://www.rodharmon.com/>
   rodharmon at msn.com<mailto:rodharmon at msn.com>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto: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<mailto: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<mailto:fritzlerlaw at outlook.com>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20241029/8ca7b276/attachment.html>