Common causes of disputes between neighbors are issues relating to structures on or near the boundaries between neighboring properties. Massachusetts laws relating to who is liable for repairs to boundary fences and retaining walls are not very clear, making it important to communicate with your neighbor over issues before they become a problem. Understanding where exact boundary lines exist is important, even if it needs a surveyor to examine property records. If a dispute seems difficult to resolve amicably with your neighbor, you may need to talk to a rest estate attorney about your legal rights and how to proceed. This article explores the issues arising from disputes over repairs to boundary fences and retaining walls in Massachusetts.
Boundary fences and retaining walls – how are they different?
Any kind of structure erected near to or along a property boundary and which is not a natural structure could be called for ease of simplicity a boundary fence. A retaining wall, by contrast, is a man made structure designed to prevent soil from eroding and spilling downhill, with potentially serious consequences for whichever property lies below. As far as the need to determine liability for repairs for either a fence or a retaining wall is concerned, the exact position of the fence or retaining wall is critical. Determining liability for repairs to retaining walls is generally often less straightforward than that for boundary fences, but having clear documentation determining exactly whose property the fence or wall lies on is essential and this may require the services of a surveyor with access to records kept by the local municipality or county.
Liability for repairs to boundary fences in MA
Generally, Massachusetts law determines that repairs to a fence that clearly lies on the property belonging to one or the other neighbor are the responsibility of that property owner. That property owner may also be liable for the cost of repairs to the neighboring property if the damage to the fence impacts the neighbor, e.g. if it falls over towards on top of a neighbor’s shed or garage. There is more about determining damages later in this article under the topic of negligence.
There is a different situation with a fence that lies on a boundary exactly. Any repairs then become shared responsibility. Neighbors are advised to communicate about how to cooperate over the upkeep of a shared boundary fence as this will help to prevent disputes in the future. Although shared boundary fences are theoretically shared responsibilities, there is no state law making it compulsory for one neighbor to force a neighbor to contribute to the expense of repairing a common fence.
The difference between a fence close to, but not exactly lying on a property boundary, and one that is definitely lying on a boundary is very important, so anyone buying a property should ensure they understand where their property boundaries lie. If there is any possibility of future maintenance and/or repairs that need to be done to a shared fence, then talk to your neighbor about it. A written agreement about shared costs is advisable when it comes to avoiding disputes over fence repairs. Talk to a real estate attorney to help draw up a written agreement about a common boundary fence.
Retaining walls and how liability should be determined for repairs
The exact position of a retaining wall is as important for determining liability as it is for a boundary fence. If the retaining wall is definitively on one of the neighbor’s properties completely, then that neighbor has the responsibility for repairs, while a shared retaining wall becomes a shared responsibility. The advice for avoiding or dealing with disputes over a shared structure like a retaining wall is the same as for a shared fence.
Retaining walls are somewhat different from boundary fences as they are potentially much more serious a problem if there is damage to the wall or if the property owner on whose property the wall is located removes it, e.g. to level out a sloping area of land. Retaining walls are designed to prevent erosion of soil and any rupture to the wall may be calamitous to any property lying below the wall.
This means that if there is any modification to or damage done to a retaining wall on the property of one neighbor which then causes damage to the property of the neighbor who lies down hill, this would mean that the owner of the wall may be liable for the cost of the damage done to the neighbor’s property. Liability determination may then become a real source of a dispute, which may only be resolved by determining whether the damage was caused by negligence.
How evidence of negligence may determine liability for the cost of repairs
By negligence, it means in the context of boundary fences and retaining wall that one neighbor knew or was aware that there was a potential problem with a structure that lay on their property but did not rectify it, despite knowing that it could cause damage to their neighbor’s property. For example, an old fence on one neighbor’s property that hadn’t been maintained for years and was in need of repairs, but was ignored, could fall down at some time on the neighbor’s property, potentially causing damage. If there is a dispute about who is liable for compensation for the cost of repairs (not just for repairing the fence), then the aggrieved neighbor may decide to file a legal claim against their neighbor.
Retaining walls are potentially much more serious if they are compromised than boundary fences. Property owners on whose property the retaining wall lies not only have a responsibility for the structural integrity of the retaining wall for anything that lies down hill of the wall within their own boundaries, but also for potential damage done to their neighbor’s property if wall was designed to protect soil escape above their neighbor, too. Any modification to an existing retaining wall which hasn’t been approved by a structural engineer may lead to a serious downhill slip and an expensive claim from their neighbor.
A real estate attorney can help with fence and retaining wall disputes
Because of the potential implications of a damaged retaining wall, it is certainly advisable for any prospective buyer of a property on which an existing retaining wall exists or which lies on a boundary line between two properties to seek a written agreement over any shared costs, or agreed liability in the event of a rupture of the wall. Written agreements should be based on well researched and documented property boundary lines and the history of the retaining wall erection. A real estate attorney can help with documentation, the drawing up of any written agreement, and litigation in the event of any unresolved dispute.