Hi Michael, I am having a dispute with my neighbour about the retaining wall that separates our boundaries. Our neighbour excavated the adjoining land and constructed a retaining wall a few years ago on their side of the boundary. About two months ago I noticed that our land was starting to subside onto our neighbours land. I walked over to our neighbour’s property and saw the wall is starting to crumble onto their side. I am becoming very concerned about the stability of our land. Who is liable to repair the wall? What are our rights?
I appreciate your help.
Rosemary

The basic rule is that as an owner of land, you have the right to enjoy your land. If your neighbour does something to their land this should not affect the use and enjoyment of your own land.  This rule is known as a right of support and is a natural right that passes with the ownership of land.

If your neighbour does something to their land, such as excavate the land and build a retaining wall on their land, and the action of doing so has caused your land to subside then you have a right of action against them. This rule is built on the principle that “a man must use his own land in a way that does not injure his neighbour”.

The right of support is actually a negative right. This is because your neighbour is not required to take any positive action to provide support but because they are required not to remove the support.

Your neighbour can excavate their land as long as they do so in such a way as not to cause subsidence of your land. Similarly they may replace the natural support removed by the excavation with artificial support. Either of these actions does not incur any liability so long as you are still able to use and enjoy your land in the same way. This means that the excavation or removal of support itself does not give a cause of action to the landowner.

Liability does arise when damage is actually sustained to your right of enjoyment of your property by a subsidence caused by the excavation or removal of support. If you cannot use the land that is close to your boundary because the land is subsiding onto your neighbour’s property then they are liable. The normal remedy for damage cause by interference with the right of support is damages.

Your neighbour should also be aware that had the subsidence occurred later on after they had sold their property that they would still be liable for the damage. This is because the liability of the landowner who excavates the land is personal and does not pass to any subsequent purchaser of the excavated land but remains with that landowner who excavated the land in the first place. Similarly, if the natural support has been replaced by artificial support, the duty to maintain the artificial support does not pass to any subsequent purchaser. It is important for owners who excavate their land and construct a retaining wall to be aware that they may remain liable to damage even after they have sold their land.

I suggest that your best course of action is to ask your solicitor to write a letter to your neighbour setting out that your neighbour’s excavation of their land has caused your land to subside and that as a consequence you will be seeking damages. If your neighbour continues to dispute the matter you can proceed to the District Court. Please let me know if I can be of any further assistance, Rosemary.