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  1. #1

    Default Ownership of a Retaining Wall in a Slow Moving Landslide Area

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

    Facts:

    Purchased home in 2015. After purchase, property survey was conducted. Survey showed the left bordering retaining wall (approximately 6ft in height) mostly inside subject property parcel. A portion of the wall was 0.5ft outside the property line. This section of retaining wall was reconstructed by subject property owners in mid 2016 to correct the 0.5ft encroachment and as part of maintenance.

    Very recently, a new survey was conduced showing this wall 0.9ft outside subject property boundary. Land movement is severe and stabilization of this retaining wall will be very expensive and/or impossible.

    Question #1: When retaining walls are once within a subject parcel, but later slide into the adjacent property, does the ownership of the wall change from subject property ownership to adjacent property ownership?

    Questions #2: If the major part of a hillside is moving and it's assumed that all lots are moving proportionally to the landslide, how are the property boundaries determined? In the example above, is the subject property owner responsible for taking down the now encroaching retaining wall and moving it to within the subject properties boundaries? What if moving of the wall becomes too close to the subject properties house? Would the house (or a portion of the house need to come down)?

    Thanks,

  2. #2
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    Default Re: Retaining Wall in Slow Moving Landslide Area

    Quote Quoting lookingforanswer!
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    Question #1: When retaining walls are once within a subject parcel, but later slide into the adjacent property, does the ownership of the wall change from subject property ownership to adjacent property ownership?,
    The ownership does not change. The wall becomes an encroachment on and a trespass on the neighbor's property.

    Quote Quoting lookingforanswer!
    View Post
    Questions #2: If the major part of a hillside is moving and it's assumed that all lots are moving proportionally to the landslide, how are the property boundaries determined? In the example above, is the subject property owner responsible for taking down the now encroaching retaining wall and moving it to within the subject properties boundaries? What if moving of the wall becomes too close to the subject properties house? Would the house (or a portion of the house need to come down)?
    These are interesting questions. But unless your state has passed legislation to address boundary disputes after a landslide or earthquake, property lines do not move. The latitude and longitude and direction of the survey courses stay the same. Think of it as if the survey boundaries are floating just above the land with the land moving under them.

    So I would have to say that the encroaching wall would have to be taken down and moved. Hawaii has an encroachment statute that says an encroachment of six inches or less is considered "de minimis and therefore does not need any encroachment agreement between neighbors.

    While the de minimis law reduces the number of encroachment agreements filed, note that a neighbor still has the right to tear down an encroachment going onto his property if an encroachment agreement is not in place. So if a wall encroaches onto a neighbor's property by one inch and there is no encroachment agreement, the neighbor can remove that one inch of wall.
    TITLE 36. CIVIL REMEDIES AND DEFENSES AND SPECIAL PROCEEDINGS
    669. Quieting Title
    669-11 De minimis structure position discrepancies, defined.


    Universal Citation: HI Rev Stat 669-11 (2013)

    Note

    Applies to all structure position discrepancies without regard to when the facts or actions giving rise to the discrepancy occurred. L 1997, c 131, 5; L 1999, c 185, 4.

    669-11 De minimis structure position discrepancies, defined. For the purposes of this part, "de minimis structure position discrepancy" means:

    (1) For commercial property, industrial property, and multi-unit residential property, 0.25 feet;

    (2) For all other residential property, 0.5 feet;

    (3) For agricultural and rural property, 0.75 feet; and

    (4) For conservation property, 1.5 feet;

    between the location of an improvement legally constructed along what was reasonably believed to be the boundary line and the actual location of the boundary line based on the most recent survey. [L 1997, c 131, pt of 2; am L 1999, c 185, 2]
    You should direct the question about the house to your local zoning and building departments.

    You should consult with an attorney about an encroachment agreement so that maybe you don't have to remove the wall yet.

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