Legal Issues In the News

Neighbors Law (ReBroadcast)

Bob Lawless

Bob Lawless University of Illinois College of Law

Whether you are a United States senator or an everyday citizen, if you own a house you almost certainly have a yard. And, how you keep that yard affects your neighbors. Although neighborhood lawn disputes may only rarely break into a physical altercation, they do turn into litigation with somewhat more frequency. Indeed, these disputes are frequent enough that a legal encyclopedia has a 126-page entry cataloguing cases where neighbors have sued over trees and shrubbery that encroached on their property. This law leads to some surprising results.

Imagine a pear tree next to your property line. The trunk is on your neighbor’s property, but part of the tree overhangs your property. All you have to do is reach up and grab those pears for your lunch. Wait! Not so fast. The usual rule is that the entire tree belongs to whoever owns the property where the trunk is located and that includes those pears.

Rats, you can’t have the pears. But, now that you think about it, the limbs on that pear tree are pretty low and pretty numerous. In short, they are a danger to persons on your property. You would just cut off the limbs, but some guy on the radio told you the entire tree belonged to your neighbor, Now, I have good news. Go ahead and cut those limbs. In a surprising number of cases, people have sued for a court order to force neighbors to cut overhanging tree limbs. Paraphrasing just a little, the judicial opinions read something like this:

We are a busy and expensive part of your government. Every day, we hear cases where people’s lives, liberty, and fortunes hang in the balance. Cut those limbs yourself and bother us no more.

This result has come to be known as the Massachusetts Rule, although one wonders what it is about the Bay State that these disputes have happened enough that the resulting rule is named after the state. What about the falling leaves and other detritus from your neighbor’s tree? It’s too bad for you. The courts have uniformly ruled that the natural debris from a tree or even a whole bunch of trees does not constitute a nuisance that the tree owner needs to abate. As a personal aside to my neighbor . . . sorry about all those leaves my tree has left in your yard, but the law made me do it.

This commentary so far should strike you as just being barely to the good side of batty. What lessons do these cases teach us other than that there are always people who will sue over the smallest provocation? The cases have their roots in a peculiarly American view of property law. The amount at stake does not matter. The persons involved do not matter. Property rights are property rights.  A necessary corollary is that a property dispute between neighbors is no different than a property dispute between strangers.

Not all legal systems take this approach. Some treat disputes between neighbors as a special category of legal problems. South Africa may have the most developed specialized neighbors law, resting on the idea that the right to use one’s property extends only so far as there is a duty on the neighbor to tolerate the use. Put more simply, your use of your property affects your neighbors. Don’t be a jerk.

Scottish law similarly has recognized that neighbors owe special duties to each other. In Scotland, an action that may be justified against a stranger might not be justified against a neighbor. Scottish law goes even farther by imposing a positive duty sometimes to help neighbors under a “common interest” doctrine. Neighbors may have affirmative obligations to maintain a common wall or preserve a pathway that gives access to another’s property.

It is neither likely nor necessarily desirable that U.S. law follow these countries and move toward a specialized neighbors law. But, these international examples do remind us that it is cooperation and not fences that make the best neighbors.