In the last couple of days, I have had not one, but two inquiries as to what possible remedy might be available when an adjoining wall is listing over onto one’s property.

I find it rather amazing, but to my knowledge Washington State doesn’t have a specific cause of action. Washington case law does include situations in which someone who is digging down to establish a foundation must pay civil damages for failing to provide adjacent or subjacent support when the land support fails.

Yet, the situation of the downland owner who sits there threatened – but not actually damaged -by a failing upland owner’s structure is not a situation (at least to this point) for which I have been able to find a legal case. If anyone wants to point out case law which I have missed, by all means please feel free to do so. I am sure there are several people beyond me who would be interested in your finding.

The issue is this. In any legal claim, one must prove that there are actual damages. So, unless the projection of risk is so great as to create emotional distress which can in turn be determined to be intentionally inflicted (i.e. gerrymandering the tort claim of Intentional Infliction of Emotional Distress [“IIED”]), I simply can not fathom a legal approach to the problem.

Fortunately, law is not the only way in which lowland parties may be able to seek relief. The other is through equity. In such a situation, the lowland party may consider bringing an action against the upland party in which he or she claims:

• The land is subsiding (i.e. sinking (subjacent) or falling away (adjacent)); and
• The defendant is negligent or unreasonable in shoring up the wall to prevent its risk of collapse.

One should also look to see if there are any zoning requirements which may supplement the claim. For instance, what are the engineering rules which surround building a bulkhead or retaining wall? Are these rules currently being met? Notably, these rules may not have been in place at the time the wall was put in place?

As such, the Court would likely want to assess the viability of the risk. If high, then what?

Because these are questions involving potentially catastrophic damage to person and property. Courts if they are willing to entertain the question at all, might go back to the Judge Learned Hand method of calculating negligence.

(P)(L) > B

Probability of the event’s occurance multiplied by the value of the Loss > Burden of preventing the loss.

In other words, if the liklihood of the event is extremely remote (say 1/1,000,000) but the loss would be huge (say $10,000.000), then the precaution that one should take to prevent negligence would not be required to exceed $10.

It’s readily apparent that this approach is not going to solve most problems, but it is a method lawyers and judges use to attempt to get their respective arms around the interaction of risk, negligence, and liability.

If a Court after this, decides to provide equitable relief. Instead of mandating performance, Courts provide injunctive relief of a prohibitive nature.

What this means is that Courts almost catagorically won’t order an upland owner to create a wall. Instead, the Court, if it decides to grant relief for the downland owner, will order that the upland owner cease from having the wall and its debris from encroaching upon the lowland owner’s property.

The effect is to tell the upland owner to clean up the wall as he or she deems most appropriate.

But here’s the rub in that: “What if the upland owner doesn’t have the wherewithal to make this happen?”

Does the lowland owner have the right, or does he or she need to seek the right from the Court, to effect this change and then place a lien on the upland owner’s house? How much money can be reasonably expended in this effort?

It seems that there is no clean cut remedy. So, one should identify what type of insurance may be available to protect against the harm. In other words, get yourself properly insured, even if it requires paying a higher premium – which ostensibly could be considered as the necessary damages – and allow the insurance company battle things out with your neighbor or their insurance company if a horrible event should occur.

Notably, this is an after the fact (i.e. ex post) approach. Though, the best is a before the fact approach (i.e. ex ante). In other words, when you are looking to purchase a home. Work with someone who will help raise the tough questions for you so that you don’t go blindly into a situation in which you could get yourself not only financially, but physically hurt, if not destroyed.