Who is Responsible to Pay for Repair of a Retaining Wall Adjacent to a Right-of-Way

[Giovanni]

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

Hello,

Our property has an easement road that is used by two neighbors to access their home. A large portion of the easement is supported by a retaining wall that is located on our property only. The retaining wall is failing and needs to be replaced.

According to our buyer's contract, the retaining wall was built "to stabilize the road." Additionally, the contract says we are "responsible for the maintenance of retaining wall."

Does this mean we are the only ones financially responsible? Or can we use CA Civil Code 845 to share the financial responsibility with the two neighbors?

I'm not sure if it's relevant or not, but we do not use easement section of the road and one neighbor runs his contracting company out of his home with employees driving to his house daily.

Thank you in advance.

[llworking]

Your contract does not use the word "we". Can you quote what it actually says, word for word?

[budwad]

And when you say "contract" are you speaking of the contract to purchase or the granting of the easement?

[Giovanni]

Thanks budwad for your help.

I am quoting the contract to purchase. Here is what it says verbatim:

From the Real Estate Transfer Disclosure Statement
"Maintenance of retaining wall is responsibility of owner of [our address]"

From the Seller Property Questionnaire:
"Retaining wall maintenance to be assumed by owner of [our address]"

From the Additional Answers Regarding Repairs and Replacements sheet:
"Retaining wall was built in 1978 to stabilize road"


Also, we purchased the home from the original developer's daughter, as did our two neighbors. Before then, the houses were rented out.

Hi llworking,

Sorry I assumed both questions were from budwad. Please see my response & thanks for your help.

[budwad]

You need to find the granting language of the easement. Look on your deed or a separately recorded granting.

[Giovanni]

Ok, thanks budwad I will do that. Can you help me understand, do you think there is anything on the deed or granting that would legally make us financially responsible to maintain the wall by ourselves? In other words, can the deed/granting/purchasing contract supersede the civil code?

The estimates to fix the retaining wall are between 60-80K.

Thanks

[budwad]

If there is any mention of maintenance in the granting of the easement that is appurtenant (runs with the land), I think it would control the situation. But as you are the servient estate, without any mention of maintenance or any separate maintenance agreement, it would be up to the dominant estates to maintain the easement in accordance with the Code.

845. (a) The owner of any easement in the nature of a private right-of-way, or of any land to which any such easement is attached, shall maintain it in repair.

(b) If the easement is owned by more than one person, or is attached to parcels of land under different ownership, the cost of maintaining it in repair shall be shared by each owner of the easement or the owners of the parcels of land, as the case may be, pursuant to the terms of any agreement entered into by the parties for that purpose. In the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each owner.

I'm no expert in contract law but I don't think that a contract to purchase between a seller and a buyer would trump the Code or a granting.

With the kind of money involved, you should really be running this by an attorney.

[llworking]

Ok, thanks budwad I will do that. Can you help me understand, do you think there is anything on the deed or granting that would legally make us financially responsible to maintain the wall by ourselves? In other words, can the deed/granting/purchasing contract supersede the civil code?

The estimates to fix the retaining wall are between 60-80K.

Thanks

You really want an attorney to be doing the research for you and giving you an opinion. There is just too much money involved to do it any other way.

[Giovanni]

Thanks Guys for your time & help. We will be contacting an attorney asap. I like to approach this forum first to get a better feel for the issues. Thanks again and have a good day.