House is for sale with deteriorating retaining wall. It’s an Estate sale. Executors do not know if wall is on the property. There is no survey. Nothing is registered on title. Before they listed, the neighbour said they would split on the cost to repair it, with the executors. Executors never really talked about it with the neighbour.
A buyer puts in an offer conditional on home inspection. Before fulfilling the home inspection they mention they want to speak with their lawyer about the retaining wall. Then, they fulfill their condition and the property is sold.
A couple of days before closing the buyers request that the executors pay for half of the retaining wall.
The information provided is insufficient to determine the accurate response. Assuming that the retaining wall was constructed a number of years ago, the question is “who owns it”.
Usually, it is undertaken by the owner of the higher sitting property and constructed entirely upon that person’s property. If the lower neighbor paid for half at the time, that person would own half of the wall. So, who constructed it and where was it placed?
The fact that there is no survey indicating its position is not really helpful, it’s either:
1) entirely on the lands of the neighbor, in which case, they pay for it all,
2) entirely upon the lands of your Sellers, in which case, they pay for it all,
3) partially located over the boundary, in which case, the two owners might share.
Your client doesn’t have to worry except for 2) or 3) above, or evidence that they contributed half of the payment when it was originally constructed.
If the retaining wall is over the boundary, then the wall has to be moved if the property was registered in Land Titles at the time it was erected. If the property was moved into Land Titles subsequently, then the rules of adverse possession and prescriptive rights apply. The neighbor either now owns the land (10 years), or has acquired a prescriptive easement to permit it to be continued. Consent by your client would disentitle the neighbor to either ownership or the right of use.
So, there is a whole story here, and the only people who know are the former owners at the time the wall was constructed. But, if we knew what they would say, then we would know the answer.
The location of the retaining wall is a title problem. The inspection issue is not relevant. The fact that the Executors have no personal knowledge is not relevant. Likely, the Buyer’s solicitor submitted a requisition within the title search period which would have covered this issue. That means that “late in the game”, it’s still “in play” and a matter to be dealt with prior to closing.
Brian Madigan LL.B., Broker