Shabbat Parashat Vayikra 5773

P'ninat Mishpat: Sharing in Building Expenses When One Did Not Directly Benefit – part II

Case: Neighbors jointly presented an expansion plan for their apartments to the Urban Planning Board and received permission for their building plans. The plaintiffs (=pl) received permission to build rooms totaling 60 square meters. The defendants (=def), who are their upstairs neighbors, asked for permission only to close off a 20 m. balcony and use the roof of pl’s extension for open balconies. Originally, pl and def planned to have their work done jointly, sharing the costs. However, def became short on money and delayed their plans, and pl built on their own and presented def with a bill of 85,000 shekels for their part in the costs. Def paid 19,000 shekels without receiving a waiver for further pay. Years later, just before the permission to build expired, def sold their apartment, and the buyers built immediately. Pl are now suing for the remaining 66,000 shekels. Def responds that their share of the building expenses should not be divided evenly with pl, because pl made more serious use of the construction. Furthermore, def didn’t use the extension at all, as only the buyers built on it. According to the law, pl should also pay def for using more joint area than def did.  

[This summary does not explore all elements of the ruling.]

Ruling: [We saw last time that while there was no binding agreement to share expenses, there are grounds for payment based on benefit that def received from pl if this can be substantiated.]

In this case, def demonstrated that they were interested in pl’s building, not only before building but afterward as well. They had things built in that would serve for their own use afterward. When they advertised their apartment for sale, they highlighted the fact that it was all ready for expansion. Finally, when pl climbed on top of his extension, def accused him of trespassing, indicating that they viewed pl’s roof as belonging to them, i.e., ready to be used on a significant level.

Def claimed that they did not benefit from pl’s construction but that their buyers alone did. One must distinguish between different types of benefit for which one is obligated to pay. One is for direct physical benefit. The other is for causing the attainment of financial gain. Rav Shimon Shkop (Bava Kama 20b) explains that when the value of one’s property is increased, this requires payment even if the one who provided the benefit did not lose in the process. Due to the construction, def’s apartment became worth more money, enabling def to sell it for more. Even if def can prove that he did not receive more money than he could have without pl building, this is a shortcoming on his part, as the benefit was there in the waiting. Even according to Rav Feinstein (Dibrot Moshe, Bava Batra 12), who says that one does not pay for the appreciation of value of the property until there is actual benefit, here the sale is to be considered actual (monetary) benefit.

There is also another possible way to obligate def, and that is through the buyers, who certainly benefitted from the construction. Since it says in the buyer’s contract that if pl sues the buyers and they have to pay, def will have to reimburse the buyers, this double obligation (buyer to pl and def to buyer) can obligate def to pl as well.

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