Shabbat Parashat Matot-Masei| 5764
Objections to Building on the Roof - Condensed from Piskei Din Rabbani’im XIV, pp. 161-169
Case: The defendant (=def) owns two out of the four apartments in an apartment building. He wants to build on half of the roof (his proportional part) two apartments to rent out to tenants. The plaintiffs (=pl) own the other apartments and claim that they will be damaged by the building project in a few ways. Primarily, they feel that the presence of additional dwellers in the building will create more noise and other unpleasant phenomena. They also claim that during the building process, they will be further affected by noise and dirt.
Ruling: Regarding the matter of additional dwellers in a joint area, we have the following precedent in the Shulchan Aruch. If one adds an attic on top of his house, he may not open up an entrance directly into the courtyard that is shared with neighbors (chatzer), because it increases the number of people who use the area (Choshen Mishpat 154:1). However, the implication is that one could make that type of addition if the entrance is to a mavoy (a more public joint area, which is more similar to our streets). This is implied by the fact that only opening up a business that attracts a large number of people from the general public is prohibited in a mavoy (see ibid. 156:1).
The difference is based on the uses of a chatzer and mavoy in classical times. Homeowners did a significant amount of household work in their chatzerot. Thus, in a chatzer, privacy and peace of mind would be significantly compromised by the addition of people sharing the area. However, a mavoy wasmoreof a thoroughfare that did not require the same level of privacy, and only a large change in the numbers was significant.
In our case, the use of the joint areas of the apartment consists primarily of passing through the staircase. Additional people do not significantly affect the matter of privacy. One must note that not any claimed nuisance meets the threshold of grounds for an enforceable objection (see one example in Rama 156:2).
Additionally, when def bought his apartments, no stipulation was made that he would be limited in what he could use his property for. Since it is standard procedure for people to build on their roofs in order to maximize the value of their plot of land, pl should not be able to withhold that valuable asset without more significant objections. As long as the matter is legal from the perspective of the municipality, def has a right to build.
As it is possible that damages will be caused during the time of building and conditions in their apartments may be compromised at that time, we require def to make the following arrangements. He must make appropriate financial guarantees for payment in the case of damages. He must also be prepared to provide reasonable, alternative accommodations for pl during the time of construction, if they so desire.
Next week we hope to bring the minority opinion and the appeal of the ruling.
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