Who is responsible for the maintenance and failure of a retaining wall between my neighbor’s property and mine?

My house was built in 2003. In 2006, a different builder purchased the tract of land next to my house and built a house. The builder excavated, removed trees, etc., graded the lot, and put up a retaining wall to keep my land from eroding into the lot. 2 years later the dirt from my yard began to run down into my neighbor’s yard because the builder did not properly grade and back fill the land when he put up the wall. My neighbors are attempting to sue me for the repairs to the wall and the damage the eroding dirt has caused to their yard. Is it my responsibility or both of us? I had nothing to do with this wall.

Asked on July 15, 2010 under Real Estate Law, Georgia

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

It appears that you do not bear the liability for the wall as you did not put it there or do anything to alter it since it has been in place (correct?).  It is, I am assuming, on your neighbors property.  Check to make sure.  But all of this will not stop your neighbourrfrom attempting to sue you.  Ths is America and everyone can sue everyone else for just about anything.  It does not mean that they have a "cause of action" or the ability to maintain a suit, but they can try.  Report the suit to your homeowners insurance companyand let them know that it is a frivolous suit. See if they will defend under your policy.  Of they refuse then ask them to spell out why not.  If you have to hire an attorney on your own bring your policy and ask about a declaratory judgement (DJ) action.  Also make sure that whomever defends you brings in the builder as a third party if he has not also been sued.  This is called an impleader.  If he is in the suit make sure that you bring a cross claim for indemnification.  Just ask the lawyer what strategy is best in your jurisdiction.  Good luck.


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