Retaining Wall with Brick Screening Wall Split Between My Property and City Property

[stratotanker]

My question involves real estate located in the State of: Texas

I bought a house on the edge of a subdivision that has a brick screening wall (built on top of a retaining wall) that sits on the edge of the back border of my property. The survey says that 2 inches sit on my property and 6 inches sit off my property (the 6 inches resides on city property next to a busy road). The builders told the original owners that the wall was common property and was to be maintained by the HOA. I'm confident that the wall was mistakenly built 2 inches on to my property when in fact it was supposed to be built completely on city property. The wall is in need of repair and is a hazard to the busy road behind our property.

In any case, the HOA is claiming that the wall is my responsibility because the covenant states that walls built on owner's property is to be maintained by them. This is a technicality and was not the intent of the builder at the time. There was supposed to be an appendix that included definitions of common property filed with the city, but this was never filed. The rest of the screening walls in the neighborhood are maintained by the HOA.

Additionally, the survey for our home has a 5 foot "wall and drainage" easement on our lot for that wall. This also shows the intent for the wall not to be our responsibility as we wouldn't need a "wall easement" for a wall we owned and were responsible for.

Since most of the wall is on city property, who is responsible?

[seniorjudge]

Q: Since most of the wall is on city property, who is responsible?

A: I think it is the city, but it may take a lawsuit to decide the question.

[lwpat]

Actually, I think it is the HOA. Have you made a formal demand to the board? If not, that is your first step. You can do it or have an attorney do it for you. Since all of the other walls are maintined by the HOA, I fail to see how they can select out just one.

[stratotanker]

We ended up talking to an attorney. The developer built the wall so that it sits two inches on our property, and the HOA found a section of the deed restrictions that states that if any walls are built on individual's property, it will become the responsibility of the individual homeowner. It's boilerplate language, and it looks like it puts us at a disadvantage. The developer didn't file the common property appendix with the city as required, and this would've likely said that the wall is common property. All other indications show that it should be HOA property (easements, etc.).

[gigirle]

The developer didn't file the common property appendix with the city as required, and this would've likely said that the wall is common property.

Why not make the city accountable for this? The building inspector would have me sitting outside his door until I got some answers.

[stratotanker]

I'm going to keep pushing the city. The first response I got back was that they weren't responsible for "HOA walls". However, I don't think an inspection report exists and they didn't ensure the common properties were filed with the city.