Shabbat Parashat Devarim| 5764
Objections to Building on the Roof - Part II - Condensed from Piskei Din Rabbani’im XIV, pp. 161-169
Case (summary from last week): The defendant (=def) and plaintiffs (=pl) own apartments in an apartment building. Pl object to def’s plans to build apartments to rent out on a portion of the roof. Pl´s complaints relate to living conditions both during and after construction.
Ruling (summary from last week): While one cannot build on to his house in a way that there will be more inhabitants using the joint courtyard (chatzer), this is because a chatzer was classically used in a way that made privacy relatively important. The set-up in modern apartment buildings is more similar to that of neighbors in the classic mavoy, where one cannot prevent another from bringing in new tenants under normal circumstances. Therefore, def may build. To alleviate possible damages and harsh living conditions during construction, def must make financial guarantees to pay for damages and pay for alternative living accommodations for pl during the time of construction.
Minority opinion (as expanded and upheld unanimously in the appeal process): Almost all opinions agree that the owner of the apartment may not make changes in the apartment in a manner that creates a new living unit, allowing additional families to enter the joint property. One cannot compare our case to that of different neighbors living in a mavoy (similar to our streets), because there each person owns his property individually, and the issue is only of the damages between neighbors. But in our case, the property is jointly owned, and one partner cannot make changes to the property without the others’ permission.
There is a clear reference to this type of situation in the Law for Apartment Buildings, which in par. 62.1 says that one is not allowed to build additions without approval of the other owners. Because the law does not contradict a clear halacha and certainly because the public, by and large, operates under its provisions, the binding, common practice is along the lines of the law. Def’s assumption, upon buying into the property, that he would be able to build, like some other people do, does not create a legal right, but rather was a financial gamble.
Additionally, Def’s willingness to assure payment and interim rental arrangements for his neighbors is not sufficient. The gemara (Bava Batra 7a, brought by Shulchan Aruch CM 154: 13) says that when one wants to make changes in a wall, which will require he who shares the building to move out temporarily, the neighbor can say that he is not willing to trouble himself.
Although pl are not required to give permission, since def is willing to be as accommodating as possible and the matter is important to him financially, pl are strongly encouraged to go beyond the letter of the law and seek a compromise for the sake of peace.
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