My question involves real estate located in the State of: Oregon
My question is whether I have missed anything important in this complicated situation, before we go to the expense of hiring a surveyor and/or working with a real estate attorney.
We are looking at a $16K wall in total, so it is worth a few bucks to us to go to an attorney, if we are presumably in the right in all that follows:
Three houses involved, with a +30YO wood retaining wall that is deteriorating.
The wall has a right angle, so we share 80% of the wall with neighbor #1 (90 YO widow), 20% with neighbor #2 (70 YO widow).
(Neither one is impoverished: one has been doing a ton of renovations to her home, the other winters in CA for several months each year.)
We are uphill from both other properties, so we do not see the wall, nor have any access to it for maintenance without going onto the neighbors' properties (thus we have no control over the wall face).
As far as we can tell, the wall was built by the original developer of the plat, mostly to the benefit of neighbor #1, whose house was built 1 year prior to the other two houses, and whose lot clearly was excavated on that side to make it flatter. #2's lot was probably excavated a little bit to match #1, and then our lot was filled, probably to avoid hauling off the excavated dirt, as well as to make the lot easier to build on. So the wall benefits all three properties, but our house was eventually built at an angle that makes the filled portion of our lot not critical to any of our structures.
We haven't found any records of any ownership agreement, nor any permits, for the wall. It is just a few inches over the 4 foot height that would have required a permit, so we suspect there isn't one - also a permit would probably just be in the name of the developer and not add much to the knowledge base. To find it, if it exists, would require a microfiche search.
The wall face is made of flat wood and it appears the face is on the property line(s), with the supporting posts placed 6" or 8" onto the neighbors' properties.
We have not been able to locate survey pins, nor had a survey done yet, though it is now apparent that will probably be needed.
In 2014, neighbor #1 brought our attention to a failing section of the wall. Like most people, we assumed that since it was holding up our land, it was our responsibility, so we bore most of the cost of that repair. During that repair, a water drainage issue from our property to neighbor #1's property was discovered, and presumed to be the cause for the failure of that wall section (although the wood wall is already well past its expected lifetime). We spent the next 3 summers trying variously more expensive fixes for the drainage issue, and 2 subsequent winters finding out that fixes 1 and 2 didn't work.
This year we are confident that we have finally fixed the drainage problem. So now it's time to fully repair (which means replace) the wall.
Also one end of this wall is supposed to support a paver walkway of ours which has subsided, and now that the drainage problem is fixed we want to fix that as well -- but until the wall is repaired we can't move forward with that either. This is clearly due to the right to lateral support that our neighbor's lot excavation has removed, which right we have become aware of since the 2014 partial wall fix.
So: there is no negligence causing the wall to fail; and all properties benefit from this wall. Due to all of the above, it is clear to us that all should share (proportionally) in the replacement cost for the wall. (If anything, since the land elevation changes are on both sides (assumed equally), AND the wall is on the property line (also assumed), AND we do not have control of the face, AND more of the wall structure is on their properties -- it leans more toward being their responsibility, not ours.)
We proposed this to them, that we all split the cost of the replacement wall 50-50, proportionally with both neighbors (we pay 50%, #1 pays 40%, #2 pays 10%).
We put together a couple of pages of explanation, and invited them both over for more than an hour, to explain and discuss it all. Both women also have grown sons who are involved on their mothers' behalfs, and one came over with his mom. We got a few bids for pricing info, and offered to oversee the project. We even offered to try to reduce the cost by giving up our level corner, and sloping our yard enough (6 inches or so) to shorten the new wall, and eliminate the need for a permit.
The new wall will also require a larger footprint than the current wall, and thus will encroach somewhat further onto their properties. We also pointed out that since we are half responsible for the wall, we can't sign up to having our responsibility on property that we have no control of. We would need an "encumbrance" written into their property descriptions, stating what the agreement on the wall ownership is: that is, granting us the right to have our portion built on their property, and granting us access as needed to maintain our portion. Or, if we can't come to a joint agreement, for our own protection we would have to insist that the wall be split into two walls, one on their property and one on ours, with each of us thus having control over our own portion of responsibility.
For example, we don't want to build this joint wall, replace our fence, fix our paver walkway -- and then have a later neighbor try to insist that we have to move the top 2 feet of the wall (holding back our fill) fully onto our property.
We are currently on good terms with these neighbors, and would like to resolve this now, and permanently, with a block wall, in case of not-so-good neighbors down the road. We are aware that they are not responsible for more than replacement costs for a wooden wall -- but we have been unable to find a contractor who would guarantee an equivalent, that is to say wooden, replacement. Six of seven contractors have said it needs to be a block wall. One would build a wooden replacement at about half the price, but it won't be guaranteed for any length of time. Also the neighborhood is such that the cheap fix will be seen as such, and a block wall is in line with the property values and the neighborhood.
Now neighbor #2 has finally responded to our communications and says "she doesn't wish to participate". Which is awesome. I wish I could just walk away from my legal responsibilities like that.
Neighbor #1 is in California for the winter and we have not heard anything from her son, which I imagine means he is going to be uncooperative as well.
We have tried to approach this as fairly as possible. We've diligently worked to resolve the drainage issue; and the wall is falling apart all over, even on the side without the drainage issue, so it's not like our negligence is causing the wall to fail. It's just old. We've tried to be good neighbors as much as we can without paying for what is not our responsibility, nor giving up our legal rights or protection.
But at this point, we feel like it is time to look at legal remedies, and go to a real estate attorney, much as we wanted to avoid that - as well as get a property line survey.
However it is also clear that these ladies will not be our neighbors forever, so if things go south in our efforts to maintain our rights, that's not the end of the world either.
Is there anything I have missed? Does our legal argument hold up?
My question is whether I have missed anything important in this complicated situation, before we go to the expense of hiring a surveyor and/or working with a real estate attorney.
We are looking at a $16K wall in total, so it is worth a few bucks to us to go to an attorney, if we are presumably in the right in all that follows:
Three houses involved, with a +30YO wood retaining wall that is deteriorating.
The wall has a right angle, so we share 80% of the wall with neighbor #1 (90 YO widow), 20% with neighbor #2 (70 YO widow).
(Neither one is impoverished: one has been doing a ton of renovations to her home, the other winters in CA for several months each year.)
We are uphill from both other properties, so we do not see the wall, nor have any access to it for maintenance without going onto the neighbors' properties (thus we have no control over the wall face).
As far as we can tell, the wall was built by the original developer of the plat, mostly to the benefit of neighbor #1, whose house was built 1 year prior to the other two houses, and whose lot clearly was excavated on that side to make it flatter. #2's lot was probably excavated a little bit to match #1, and then our lot was filled, probably to avoid hauling off the excavated dirt, as well as to make the lot easier to build on. So the wall benefits all three properties, but our house was eventually built at an angle that makes the filled portion of our lot not critical to any of our structures.
We haven't found any records of any ownership agreement, nor any permits, for the wall. It is just a few inches over the 4 foot height that would have required a permit, so we suspect there isn't one - also a permit would probably just be in the name of the developer and not add much to the knowledge base. To find it, if it exists, would require a microfiche search.
The wall face is made of flat wood and it appears the face is on the property line(s), with the supporting posts placed 6" or 8" onto the neighbors' properties.
We have not been able to locate survey pins, nor had a survey done yet, though it is now apparent that will probably be needed.
In 2014, neighbor #1 brought our attention to a failing section of the wall. Like most people, we assumed that since it was holding up our land, it was our responsibility, so we bore most of the cost of that repair. During that repair, a water drainage issue from our property to neighbor #1's property was discovered, and presumed to be the cause for the failure of that wall section (although the wood wall is already well past its expected lifetime). We spent the next 3 summers trying variously more expensive fixes for the drainage issue, and 2 subsequent winters finding out that fixes 1 and 2 didn't work.
This year we are confident that we have finally fixed the drainage problem. So now it's time to fully repair (which means replace) the wall.
Also one end of this wall is supposed to support a paver walkway of ours which has subsided, and now that the drainage problem is fixed we want to fix that as well -- but until the wall is repaired we can't move forward with that either. This is clearly due to the right to lateral support that our neighbor's lot excavation has removed, which right we have become aware of since the 2014 partial wall fix.
So: there is no negligence causing the wall to fail; and all properties benefit from this wall. Due to all of the above, it is clear to us that all should share (proportionally) in the replacement cost for the wall. (If anything, since the land elevation changes are on both sides (assumed equally), AND the wall is on the property line (also assumed), AND we do not have control of the face, AND more of the wall structure is on their properties -- it leans more toward being their responsibility, not ours.)
We proposed this to them, that we all split the cost of the replacement wall 50-50, proportionally with both neighbors (we pay 50%, #1 pays 40%, #2 pays 10%).
We put together a couple of pages of explanation, and invited them both over for more than an hour, to explain and discuss it all. Both women also have grown sons who are involved on their mothers' behalfs, and one came over with his mom. We got a few bids for pricing info, and offered to oversee the project. We even offered to try to reduce the cost by giving up our level corner, and sloping our yard enough (6 inches or so) to shorten the new wall, and eliminate the need for a permit.
The new wall will also require a larger footprint than the current wall, and thus will encroach somewhat further onto their properties. We also pointed out that since we are half responsible for the wall, we can't sign up to having our responsibility on property that we have no control of. We would need an "encumbrance" written into their property descriptions, stating what the agreement on the wall ownership is: that is, granting us the right to have our portion built on their property, and granting us access as needed to maintain our portion. Or, if we can't come to a joint agreement, for our own protection we would have to insist that the wall be split into two walls, one on their property and one on ours, with each of us thus having control over our own portion of responsibility.
For example, we don't want to build this joint wall, replace our fence, fix our paver walkway -- and then have a later neighbor try to insist that we have to move the top 2 feet of the wall (holding back our fill) fully onto our property.
We are currently on good terms with these neighbors, and would like to resolve this now, and permanently, with a block wall, in case of not-so-good neighbors down the road. We are aware that they are not responsible for more than replacement costs for a wooden wall -- but we have been unable to find a contractor who would guarantee an equivalent, that is to say wooden, replacement. Six of seven contractors have said it needs to be a block wall. One would build a wooden replacement at about half the price, but it won't be guaranteed for any length of time. Also the neighborhood is such that the cheap fix will be seen as such, and a block wall is in line with the property values and the neighborhood.
Now neighbor #2 has finally responded to our communications and says "she doesn't wish to participate". Which is awesome. I wish I could just walk away from my legal responsibilities like that.
Neighbor #1 is in California for the winter and we have not heard anything from her son, which I imagine means he is going to be uncooperative as well.
We have tried to approach this as fairly as possible. We've diligently worked to resolve the drainage issue; and the wall is falling apart all over, even on the side without the drainage issue, so it's not like our negligence is causing the wall to fail. It's just old. We've tried to be good neighbors as much as we can without paying for what is not our responsibility, nor giving up our legal rights or protection.
But at this point, we feel like it is time to look at legal remedies, and go to a real estate attorney, much as we wanted to avoid that - as well as get a property line survey.
However it is also clear that these ladies will not be our neighbors forever, so if things go south in our efforts to maintain our rights, that's not the end of the world either.
Is there anything I have missed? Does our legal argument hold up?
Fences and Walls: Shared Wood Retaining Wall is Failing - Neighbors Not Interested in Sharing Costs
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