With the surge in residential building during the last few years, it’s not uncommon to find oneself next-door to new construction.  You may be warily watching as your neighbour’s excavators start scraping away the soil near your property line. But what happens if damage starts to appear on your land during your neighbour’s excavation (for example, perhaps you discover new cracks in your sidewalk or your back deck starts to tilt)?

As a landowner you have a right to expect that your neighbour will not remove the support for your land. This is sometimes referred to as the right to lateral support. If your neighbours remove soil from their land, they must ensure they do so in a way that adequately supports your land, or they will be responsible to pay for damage caused by the disturbance.

This is an absolute right, which means it doesn’t matter if your neighbours were being careful when they excavated their soil. That being said, there are a couple of limitations to the right of lateral support. First, the right only applies to land in its natural state. If you backfill near your property line, this new soil will be considered “unnatural”, meaning you can’t require your neighbour to support the additional soil.

Second, your neighbour need only support your land and not necessarily the buildings located on the land. This may seem like a confusing distinction, but in essence, it means your neighbour will be responsible for damage to the building if your now unsupported land would have shifted even with no building on it. However, your neighbour will not be responsible if the land shifted only because of the additional weight of the building.  

The right to lateral support is not your only right in this scenario. It’s possible the damage was a result of negligence, trespass or some other cause, so it is important to canvass all your legal rights when addressing your neighbour’s actions. Cleveland Doan LLP is ready to help!