In Virginia the common law has long held that if a neighbor’s tree encroaches on your yard you may cut the branches as they fall over the property line but any damage the tree does to your property is your problem. Your neighbor can even sue if your pruning kills the tree. Last week the Virginia Supreme Court overruled this 70 year-old precedent so that now it’s your neighbor’s duty to prune or cut down the tree if it is a "nuisance."
Discuss. Which rule is better the new rule or the old? What does this ruling imply about Posner’s hypothesis about the efficiency of the common law? What would Coase say?
The question to ask is whether the neighbour would have the same objections to your trimming the tree – or if you would have the same objections to the damage caused – if the tree bore apples or plums, which you were also regularly partaking of, in the process. I think such normative framing would challenge Posner’s common law efficiency hypothesis and change the determination of whether the tree indeed is a “nuisance”..
The new law is more efficient because it iternalizes the cost of planting a tree. The owner of the tree can agree to pay the neighbor for the nuisance or choose to trim the tree. This allows for efficient bargaining, where the owner can either pay the neighbor to encroach on his property or prevent such an encroachment.
Under the previous law, the neighbor would only trim the neighbors tree if the cost of the nuisance plus the potential for damage to his land was greater than the cost of pruning plus potential to kill the tree. The neighbor is not the best person to make such a deicsion.
So on your exams, you essentially want students to write an MR blog entry? Neat.
The old rule probably reflected the fact that in the past people rarely built their structures so close to the property line as to make them vulnerable to damage from a neighbor’s tree. Nowadays, people build much closer to the property line and the chances for such damage are higher.
It seems to me that it becomes more important to have an efficient rule when the likelihood of loss is higher. So I assume that the new rule is more efficient. The old rule seemed to divide the “property rights” between the two parties. Each had a right to do as they pleased with the portion of the tree on or overhanging their property. The new rule gives the property rights (and associated loss liability) entirely to one party. This strikes me as cleaner and probably transaction-cost reducing.
The new law is considerably better. Under the old law the planter / owner of the tree held no responsibility to their actions of where the tree was planted with no negative consequences. They had an incentive to plant the tree on the property line to force the neighbor to do much of the maintenance work and bare the risk if the tree caused damage. Under the new law the planter / owner of the tree bares most of the responsibility of his/her actions and is responsible for the maintenance.
I’m not sure which side I fall on in the debate, but I think analytically we should include the fact that not all tree inhabiting property owners planted them, and that many trees if cut down won’t be replaced in similar form in the lifetimes of the parties. Further it is very possible that the tree existed before the neighbor’s house. I understand that most nuisance law doesn’t care if you move into a known hazard, but I’ve never been analytically comfortable with that.
The old law appears to have been designed to resolve a majority of cases without the need for the parties involved to take matters to another authority (the courts). Only in cases where pruning actually kills the tree would the neighbors have to call on the state. Under the new law, someone who finds his neighbor’s tree oppressive has no recourse (assuming the tree owner declines to cooperate) but to take matters to court. I like the old law better, simply because it allows for easy resolution of the majority of cases. The new law may be more equitable if perfectly administered, but it’s more of a hassle.
By way of example, my neighbors had a hedge that ran right alongside my driveway. Over time this hedge (which was planted/rooted on their side of the line) grew large and extended a couple of feet into my driveway. The driveway was narrow to start with, and this made driving up it increasingly difficult. Now, I don’t actually know enough about Pennsylvania law to say who is responsible for fixing this state of affairs. But supposing that my neighbors are truculent and lazy, so that even if they are responsible their compliance will never be very satisfactory (hedge trimming is a pain after all): it’s a lot easier if I can just trim the thing myself rather than try to bludgeon them with the law.
According to Coase, whether this is efficient will depend on the transaction costs of negotiating with your neighbor. I’ve always felt like transaction costs in asking a neighbor to prune their tree are somewhat high, as it’s embarassing to get antagonistic with a neighbor. I spoke with my neighbor once about trimming his limbs (not knowing what the law actually said, I asked him to do it since it was his tree on my property), and the whole thing was awkward. Which of us will realistically threaten to sue your neighbor if they don’t agree to prune their tree – which is really the only credible threat you have.
But, then again, I might be a special case. I’m highly non-confrontational, which is why the tree limbs still hang low on my property from my neighbor’s house, even though we had this conversation a year ago…
jason voorhees post lends anecdotal weight to my answer. w00t!
In terms of policy implications of “social anxiety” as a transaction cost, I think we should clearly subsidize bowling leagues. Clearly.
As a VA resident who recently had the top of a neighbor’s tree fall over my fence, I’m sympathetic to the new law; however, I worry that it will encourage people to use the law more than they should. This is the sort of situation where actually being a good neighbor and talking to the owners of the offending tree will usually be far less costly and more pleasnt than any legal option, and the old law encouraged that. I’m certainly happier having talked to my neighbors both in that situation and another that’s similar to what Bartlog describes than I have been in any case where I’ve dealt with the law.
For Coase, both rules are equally good as soon as the rule is clear .It give the right to suit to one part , wich one does not matter.
I would put a shotgun on fence when he is outside and smile and say: Tree falls by accident? Gun goes off by accident. Oh, is that your cute puppy outside running about near my property?
“It took 70 years for this rule to change. If it was inefficient, what took so long?”
It took 70 years for the trees to grow big enough to reveal the inefficiency of the old law.
Posner would ask if you see a lot of these cases come to court or has the system worked for 70 years. I see no evidence that these cases go to court very often. Old law was working efficiently .
Coase would ask if the change raises transaction costs. Old standard – you can remove branches if they invade your property so long as you do not damage the tree. You are free to take action. New standard – if you can prove that the tree is a nuisance you can get on order forcing your neighbor to correct the situation. The courts must give a clear definition of nuisance tree. The new rules increase the transaction costs.
Also Coase would look at the externalities, in this case the positive externality of trees is less under the new law.
Richard Posner is probably accessible enough that someone could email him this link and just ask him.
The old law was better. As some commenters have noted, branches encroaching on your property might be good or bad. Under the old approach, the person feeling the potential nuisance was responsible for fixing the problem. The current approach requires the property owner to guess whether the branches pose a nuisance and risk aversion suggests erring on the side of caution (and possibly cutting down branches that the neighbor enjoys, to the detriment of both sides).
Courts really shouldn’t mess with the old rules unless they have a very very good reason. And, frankly, most judges aren’t smart enough to recognize a very very good reason.
Take a walk in most nicer communities in this country and you will find a tree canopy that has little respect for property lines. Homes in a community that have a mature tree canopy gain value, in most of the country, from the presence of the trees. Trees on your property will normally increase your property values. Next, it hardly takes 70 years for a tree to mature, more like 25 years.
If you have a diseased tree that you do not take care of and it causes damage to a neighbor, the neighbor can sue for damages. The owner of the tree has an incentive to keep the tree healthy. But if a few stray branches cross into the owners property, when does it become a nuisance : at a foot on my property, below 6 feet on my property, those who like the new rule please define when a tree becomes a nuisance.
It seems to me that this is not so much of an economic issue as it is one of personal judgment and neighborly cooperation. Most obviously is that the trees that pose problems are large, older trees that are tall and heavy enough to do damage to property. These trees take a long time to grow, and should be taken into consideration when buying property. If you are looking into buying a house with a large tree just across the line, talk to the neighbor about whether he has ever considered cutting it down, or trimming it to keep your would-be house safe. If not don’t buy the property…the tree and neighbor were there first. In the rarer case of a planted tree grows to be a hazard or nuisance…it is the responsibility of the planter/property owner to maintain said tree…If he doesnt, then the party being placed in danger or bothered has every right to trim the tree back, and if it dies as a result, so be it.
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