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Retaining wall - requirement to replace neighbour's wall

  • Last Updated:
  • Jul 27th, 2020 4:32 pm
[OP]
Deal Addict
Aug 30, 2011
3499 posts
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Ottawa

Retaining wall - requirement to replace neighbour's wall

TLDR: Can the City make me replace my neighbour's failing retaining wall, which was erroneously built (in part) on our property?

Our backyard slopes down to the River (we're at 78 metres, several streets below, the river is 54 meters), as do the other properties behind us and beside us. -- except for our direct backyard neighbour. She had a railway tie retaining wall built at the same time as her house in 1982 in order to have a level backyard. Now, ~40 years on, the retaining wall that backs on our property, and our next door neighbour's property, is failing. We filed service requests to determine if the owner could be required to replace this wall. Property Standards By-law 2013-416 states that "The owner of property shall repair, maintain and keep the property in accordance with the standards and take immediate action to eliminate any unsafe conditions". The bylaw officer has verbally told me and our next door neighbour that because the retaining wall is on our properties (stakes/pins mark our property lines), we are the "owners" and are therefore responsible for replacing the wall. It runs 65' along the back of our property, and my husband and I are obviously not keen to have to pay for a new wall.

Has anyone experienced anything similar? My neighbour is pursuing the matter with the grading department, as it seems logical that whoever owns the property that needs soil held back should be reponsible for maintaining that wall. I am friends with the elderly neighbour who built the retaining wall, and she agrees it is failing, but is unwilling to pay for a new one.
Last edited by OttawaGardener on Jul 27th, 2020 5:26 pm, edited 1 time in total.
18 replies
Deal Addict
Dec 18, 2017
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London, On
I imagine the passage of 40 years probably changes things in murky property law, but maybe say "you need to either replace your wall, remove your wall from my property, or buy that piece of property from me". Probably won't work though and definitely being friends with her is going to be a downer on this. How tall is this wall?
[OP]
Deal Addict
Aug 30, 2011
3499 posts
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Ottawa
@djeffery the wall is 3.5 to 4 feet high. It is a $$ issue for the neighbour, so no option that costs money is going to work, sadly.
[OP]
Deal Addict
Aug 30, 2011
3499 posts
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Ottawa
Jon Lai wrote: She knows the wall is failing but doesn't want to replace it. What does she expect will happen? Is she OK if her backyard gets eroded onto?
The issue is that it appears the City is going to make us replace it, we can't just remove it. Even if we could just remove it, we'd end up with part of her back yard in ours. I've landscaped our yard, so that won't work!

I've found out that the City provides 30 free minutes of legal advice about property issues, so we'll definitely be pursuing that.
Deal Expert
May 30, 2005
47611 posts
8245 upvotes
Richmond Hill
OttawaGardener wrote: The issue is that it appears the City is going to make us replace it, we can't just remove it. Even if we could just remove it, we'd end up with part of her back yard in ours. I've landscaped our yard, so that won't work!

I've found out that the City provides 30 free minutes of legal advice about property issues, so we'll definitely be pursuing that.
I would imagine that, as building a retaining wall requires regrading of her land, there must have been a permit pulled and an inspection done to make sure that the grading is acceptable and adheres to code. There's no way the city would have approved the neighbour's retaining wall solely in your property, it should have been on their property or at the very least, on the property line. If this is the case, then it provides evidence the neighbour built the wall in the incorrect location, and would then be legally responsible to rebuild it in the proper location.

At least, that's my thought process with my limited legal knowledge.
Deal Addict
Jun 26, 2019
1965 posts
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GTA
OttawaGardener wrote: The issue is that it appears the City is going to make us replace it, we can't just remove it. Even if we could just remove it, we'd end up with part of her back yard in ours. I've landscaped our yard, so that won't work!

I've found out that the City provides 30 free minutes of legal advice about property issues, so we'll definitely be pursuing that.
Ok, first of all I'd like to say that I am not familiar with Ottawa by laws, but I'm very familiar with all GTA ones, and generally they are the same across most municipalities.

So lets start off with if either one of you wanted to landscape your backyard. In this case, a survey would be prepared and the key points would be the property line elevations. As the wall is on your property, if you were to change the grades in your yard, you would have to either maintain the existing property line grades to not adversely impact your neighbours lot, or get written permission from your neighbour to do so. Drainage patterns, erosion protection, etc, must all be maintained in either case. So this answer probably isn't the one you are looking for.

As this is not a case where someone is redeveloping or regrading, and its more so regarding the maintenance of an existing retaining wall, this could present a bit of a grey area.

The one key thing I want to point out, is your statement of:
OttawaGardener wrote: as it seems logical that whoever owns the property that needs soil held back should be reponsible for maintaining that wall.
Is probably the most key part of this argument. When she built her house, was all the 3:1 grading to match to grades on your lot contained within her property? If she built a house, she probably needed a site grading plan as part of the building permit and additionally, there may be a subdivsion grading plan floating around somewhere. These are two things to look into. Additionally, if you come up empty on these items, you can probably draw conclusions from historical aerial maps or old contour data.

In the case where the original subdivision grading, or her grading plan, or anything shows that the existing property line elevations were your current backyard elevations, then you have a solid case. Based on this, for a 4ft wall, the original subdivsion design probably have 12ft of 3:1 grading to match slopes.

In the alternate case, where it shows the 3:1 was all in your property, or it was split half and half, then you're a bit out a luck. In these cases, esp the former, it would be shown that you built the wall to hold soil back and increase usable backyard area. BUT, if they build the wall, it doesn't make sense that this would be the case.

So you should be able to find some evidence that the original property line elevations were equal to your backyard and the 3:1 sloping occurred in her backyard. You could also look at other lots in your neighbourhood to see where their sloping is. If there is a consistent pattern that the 3:1 sloping which steps down is all in the uphill neighbours lots, then you could make a case that this was also the subdivision design.

In summary, I think based on current "existing" conditions, you would be responsible for the wall, as it is your property and "existing" property line elevations should be maintained. However, I think you have a pretty strong case to make assuming you can dig up any of the above information. Even just citing the fact that the wall was built as part of the development of the neighbouring house could be close to enough justification, but the more you get the better. Seeing as the neighbour has no money, there may not be an ideal end to this storey for both parties. Could grade it out, but it would still cost some money and they would lose some land.

Hope this helps!

Keep us updated as this unfolds and we can offer more advice.
Deal Addict
Jun 26, 2019
1965 posts
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GTA
Jon Lai wrote: I would imagine that, as building a retaining wall requires regrading of her land, there must have been a permit pulled and an inspection done to make sure that the grading is acceptable and adheres to code. There's no way the city would have approved the neighbour's retaining wall solely in your property, it should have been on their property or at the very least, on the property line.
Seeing as this was done as part of new house construction, there is a chance that the wall would have been included as part of the grading plan as part of the building permit. However, in a lot of cases the final landscaping may not be captured on these grading plans.

The topographic survey prepared however would show you the existing state of the lot, and you could draw a number of conclusions from this. As I stated above, I think the key thing here is to show the grades as per the subdivision/original grading showed the sloping on there lot. Thus, they built the wall to benefit them, and built it on your property to boot.
[OP]
Deal Addict
Aug 30, 2011
3499 posts
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Ottawa
Jon Lai wrote: I would imagine that, as building a retaining wall requires regrading of her land, there must have been a permit pulled and an inspection done to make sure that the grading is acceptable and adheres to code. There's no way the city would have approved the neighbour's retaining wall solely in your property, it should have been on their property or at the very least, on the property line. If this is the case, then it provides evidence the neighbour built the wall in the incorrect location, and would then be legally responsible to rebuild it in the proper location.

At least, that's my thought process with my limited legal knowledge.
Thank you. Yes, that is something our next-door neighbour is trying to find out... was there a permit for the wall and for the grading changes, with different actions going forward depending on the answer. Not sure how fussy the City was back then.
These are relatively deep lots (ours is 130') so it may simply be that building 8 or 12" onto our properties wasn't an issue at the time (we & the next-door neighbour were not here back in 1982)
[OP]
Deal Addict
Aug 30, 2011
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Ottawa
@SubjectivelyObjective thank you for your detailed comments. We have some avenues to pursue, and hope to get some answers in the next couple of weeks. I will then update this thread! Hopefully, our process will help anyone else facing a similar problem.
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Feb 25, 2004
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Longueuil
Regardless of the condition of the wall, is it possible for you to ask her to remove the wall from your property or is she granted the right to "own" that part of your property (I assume she paid for the wall originally)?
Try not! Do or do not, there is no try...
Deal Addict
Jun 26, 2019
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GTA
JEDI Force wrote: Regardless of the condition of the wall, is it possible for you to ask her to remove the wall from your property or is she granted the right to "own" that part of your property (I assume she paid for the wall originally)?
While this would be cheaper, I think the cost may still be considerable.

The neighbor would lose about 9-12ft of usable land along the entire side of the property, which if in the spirit of cost savings, they are ok with it, it could be an option.

This said, you would have to remove about 65 linear feet of wall, not to mention over 1,400-ish cubic feet of soil, and then stabilize the area, I think this option also adds up in cost pretty quickly. Might want to do a cost comparison between the two options.
Deal Guru
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Mar 13, 2004
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Ontario
Can you post some photos of the issue?

If you guys need to rebuild the wall then make sure that you guys somehow separate both sides so for future she needs to fix/replace whats on her side and you are only responsible for your side. Sharing things with neighbors always have the chance to have issues in the future when you guys don't agree.
Deal Fanatic
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Sep 9, 2012
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Oakville, ON
OttawaGardener wrote: Thank you. Yes, that is something our next-door neighbour is trying to find out... was there a permit for the wall and for the grading changes, with different actions going forward depending on the answer. Not sure how fussy the City was back then.
These are relatively deep lots (ours is 130') so it may simply be that building 8 or 12" onto our properties wasn't an issue at the time (we & the next-door neighbour were not here back in 1982)
Do you have a Title Insurance Policy? Might be another avenue to pursue since you’ve become responsible for an issue due to an encroachment on your property, ie a title issue. It’s usually required to get a policy when obtaining a mortgage.
[OP]
Deal Addict
Aug 30, 2011
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Ottawa
JEDI Force wrote: Regardless of the condition of the wall, is it possible for you to ask her to remove the wall from your property or is she granted the right to "own" that part of your property (I assume she paid for the wall originally)?
Yes, the backyard neighbour did build it, there's no dispute there. There is no suggestion that she now owns any part of our property. She wasn't aware that it wasn't built fully on her property, but now sees where the survey stakes are for our next door neighbor (who is building an infill, bringing the failing wall issue to a head). Since the City is now involved, current rules will be enforced about rebuilding the wall. It would be a huge effort to relocate all the soil from behind the wall if it were removed, and we don't want it on our property, so it would affect hers a lot. Water would run down to our yard too - definite grading issue.

The elderly widow who owns the property with the retaining wall is house-poor. It is worth probably $900,000, but as with many elderly people who own their homes outright, they are reluctant to borrow against the equity. She is aware of the ownership rule, and hopes to have the wall rebuilt at little or no cost. We are friendly, but with so much $$ at stake, it is a difficult situation.
[OP]
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Aug 30, 2011
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CanadianLurker wrote: Do you have a Title Insurance Policy? Might be another avenue to pursue since you’ve become responsible for an issue due to an encroachment on your property, ie a title issue. It’s usually required to get a policy when obtaining a mortgage.
Thanks... We did, pretty sure, will check our purchase records from 15 years ago.
[OP]
Deal Addict
Aug 30, 2011
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Ottawa
sickcars wrote: Can you post some photos of the issue?

If you guys need to rebuild the wall then make sure that you guys somehow separate both sides so for future she needs to fix/replace whats on her side and you are only responsible for your side. Sharing things with neighbors always have the chance to have issues in the future when you guys don't agree.
I'll do so tomorrow. We really don't want it rebuilt on our properties at all (us & our next door neighbour). To clarify, this is a wall that runs along the back yards of our house and our next door neighbour (corner lot). The wall was build by the neighbour whose house is behind both of ours, but fronts on another street.
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Feb 25, 2004
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OttawaGardener wrote: Yes, the backyard neighbour did build it, there's no dispute there. There is no suggestion that she now owns any part of our property. She wasn't aware that it wasn't built fully on her property, but now sees where the survey stakes are for our next door neighbor (who is building an infill, bringing the failing wall issue to a head). Since the City is now involved, current rules will be enforced about rebuilding the wall. It would be a huge effort to relocate all the soil from behind the wall if it were removed, and we don't want it on our property, so it would affect hers a lot. Water would run down to our yard too - definite grading issue.

The elderly widow who owns the property with the retaining wall is house-poor. It is worth probably $900,000, but as with many elderly people who own their homes outright, they are reluctant to borrow against the equity. She is aware of the ownership rule, and hopes to have the wall rebuilt at little or no cost. We are friendly, but with so much $$ at stake, it is a difficult situation.
I see. I would assume if the wall was removed from your property, it would include getting rid of all that soil (I suppose she would not be allowed to simply dump it on her property because of grading issue).

As sad as it is, it doesn't seem realistic for her to expect to have her wall rebuilt at little or no cost. Sooner or later, she will likely have maintenance work to be done on her house (example: replacing the roof) that will require a lot of money.
Try not! Do or do not, there is no try...

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