Experts expect this winter to bring California a lot of storms. There will be flooding, erosion and slides. If your property is lower on a slope than an adjacent property, then your property has a duty to support the uphill property. You have probably heard of a “duty of lateral and subjacent support.” There are several limits to this duty. Despite such limits, there remains an affirmative duty to not allow any improvements to provide such support, to decay.
The downhill property is required to support the uphill property in its natural condition, not with a house or larger building added to it. The weight of the uphill house will be considered a contributing cause only if it was a substantial factor in causing the land failure. The weight is spread out over the entire surface of the foundation and footprint of the house. If the question of substantial factor is contested, it will require expensive expert witnesses.
If the weight of the uphill buildings contribute to a slide, then the parties are probably going to share the blame. Determining shares will be complicated and require expert testimony.
A subsequent owner is not responsible or liable for the removal of lateral support caused by excavation by a prior owner. The prior owner remains liable (if you can find him and he has assets). The current owner who did not perform prior excavation, is liable only for the new owner’s own negligence.
In Sager v. O’Connell (1st Dist., 1944) 67 Cal.App.2d 27 the downhill had built a bulkhead on the uphill to provide support for the uphill property. Sager held that the downhill neighbor was not liable for the excavation nor for the erection of the bulkhead, because those were done without any negligence. Nonetheless, the court held the downhill owner could be liable for “permitting the bulkhead to decay.”
With the benefit of 20-20 hindsight after a slide or other erosion have occurred, proving absence of negligence will be difficult and expensive.
If there is a retaining wall which supports the property above you, inspect it. If you have a suspicion about it, then have your attorney hire an expert to give an opinion on its useful live and likelihood of failure. If you hire the expert yourself, and he gives you bad news, and you do not act to correct the problem, the other side will get that report and use it to prove you were not just negligent but reckless. If your attorney hires that expert, there is a better than 50-50 chance that the first report can be suppressed. However, do not count on shopping for a better opinion. The facts will be the same.
If you have an uphill neighbor and have any questions about your responsibility for providing support to keep his house up there, please call me at 510-286-2200 or email me at [email protected].