GOT A LEGAL QUESTION? ASK MICHAEL@METROLAW.CO.NZ Email firstname.lastname@example.org with your question, and put ‘Ponsonby News’ in the subject line. Michael, a partner of the firm, will answer one topical question each month.
Our neighbours on the downhill side are concerned about the retaining wall which is now leaning on quite an angle towards their property. Can you let us know who has legal responsibility for the retaining wall? This is an interesting problem. To start with you should see what you can find out from the council about who was responsible for constructing the retaining wall. If the retaining wall was not built correctly then this may give rise to a claim against the builder. You also want to determine whether the work was done by your neighbour or by an earlier owner of your property.
It would also be useful if you could determine whether the retaining wall is on your property, on the boundary or on your neighbour’s property. If the retaining wall is all on your neighbour’s property then it may well be their problem to deal with. You can try and find the surveying pegs on the property or you can look at the plan on your certificate of title and measure from other boundaries to get an idea of where the boundary lies or you could consult a surveyor. The owner of land has a right of support for the land in its natural state and there is a corresponding duty from the neighbour to preserve this support. However, this duty is a negative duty in that the obligation of the neighbour is not to do anything to remove support and not a positive duty to maintain support. If the removal of support is by natural causes then there is no liability. This is why it becomes relevant who did the work on the retaining wall as if it was the neighbour who carried out this work then this could provide the breach of duty. As you can see there are a number of considerations to take into account to determine who may be liable. The first step is to find out as much information as you can about the construction of the retaining wall, when this was done and who carried out this work. You will then need to seek further advice. (MICHAEL HEMPHILL) PN METROLAW, Level 2, 36 Williamson Avenue T: 09 929 0800 www.metrolaw.co.nz Disclaimer - This article is for general information purposes only. If you have a legal problem you should seek advice from a lawyer. Metro Law does not accept any liability other than to its clients and then only when advice is sought on specific matters.
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158 PONSONBY NEWS+ December 2010
PUBLISHED FIRST FRIDAY EACH MONTH (except January)
Christmas issue - covering December and January - news/views and all that is happening in and around Ponsonby