Retaining walls are not
legally considered to be
fences, although they may
serve as footings for
fences.
The rights and obligations of
neighbouring landowners
concerning the erection and
maintenance of retaining
walls are governed by the
common law doctrine of
support to land. Landowners
have the right to the support
of neighbouring land so that
if excavation or other work
on adjacent property results
in damage to their land, they
are entitled to monetary
compensation or an injunction
against the person causing
the damage.
This right, best described
as a natural right not to
have the support of one’s
land removed, is founded in
the tort of private nuisance,
which protects landowners
from invasions of the use and
enjoyment of their land.
However, this right applies
to land in its natural state
and does not automatically
extend to buildings on the
land; although if the
withdrawal of support would
have resulted in damage (such
as subsidence or erosion) to
the land in its unaltered
state, the amount recoverable
may include damage to
buildings.
Liability for the
withdrawal of support is
strict and does not depend on
proof of negligence. Indeed,
it has been established that
an owner has no duty to take
care that damage to
neighbouring land does not
indirectly result when making
excavations, and is not
liable for resulting damage
in the absence of a right to
support.
Next
month: Use of Land,
and Domestic Rainwater
Tanks
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