Shabbat Parashat Emor| 5768

Sharing Expenses on Property Dividers

Ask the Rabbi

Question: Someone bought the home next to mine and not only wants to build a stone wall between our yards but expects me to share the expenses. Is his claim that I am halachically required to do so correct?

Answer: The mishna (Bava Batra 2a) discusses the type of wall that is to be built between people who share property that is to be divided between them. The gemara (ad loc. 2a-3a) discusses whether the two have to agree to make a wall or that once they agree to divide the property, each can demand of the other to erect one between the sections. The gemara says that it depends on whether we consider the fact that one neighbor can see what the other is doing on his property a damaging situation. We accept the opinion that intrusion on privacy is damaging and thus one neighbor has a right to the wall (Shulchan Aruch, Choshen Mishpat 157:1).

In many areas of rights between neighbors, there is a concept of chazaka: if one side took control of a certain type of usage without his neighbor protesting, he can continue doing so. (The logic, parameters, and opinions on the matter are beyond our scope.) However, the Rambam (Shutfin 2:14) said that regarding walls, even if the distinct properties lacked a wall for years, there is no chazaka, and either neighbor can demand the erection of a wall. There are two explanations for this halacha. Usually chazaka occurs when one side takes a positive step which would trigger a protest if it had not been agreed upon or was not agreeable. In this case, the lack of a fence is a passive situation. The fact that nobody raised the issue of erecting one is not proof that it was meant to remain that way (Maggid Mishne, ad loc.). Furthermore, in the standard case of chazaka, one side does something from which he benefits and the other stands to lose. Then if the potential loser from the situation is quiet, we reason that he must have gone along with the steps for some reason. However, in this case, where each neighbor is the potential gainer and the potential loser, we take seriously the possibility that he did not feel a need to initiate steps to put up the wall, and he retains the rights to protest in the future (Tur, Choshen Mishpat 157 in the name of the Rosh).

Either way, in your case, you would have to demonstrate that there was an outright agreement by your neighbor or one of his predecessors to waive the right to demand a wall that prevents potential invasions of privacy. Even an oral relinquishing of rights would suffice (S’ma 157:4; see Pitchei Choshen, Nezikin 14:(53)). The Rama (CM 157:1) accepts the opinion in the Rishonim that one’s right to a wall exists even in a place where the practice is to not have such walls.

Both sides normally have to take equal part in the expenses and the relinquishing of space from the property upon which the wall will sit (Shulchan Aruch, ibid.). However, the matter becomes more complicated when there is disagreement as to the quality of the wall and its accompanying price. In general, the wall between residential yards should be four amot (approximately six feet) high so that it effectively obstructs the view. Similarly the density must obstruct the view. However, one can force his neighbor to pay only for the level of building that local practice or, in its absence, a beit din or an expert, considers a standard wall (Shulchan Aruch and Rama, ibid.:4).

There are more details that might come up in adjudication over this point of contention, which could effect the halacha in a major or a minor way. However, we hope that the general information we have provided gives you the basic legal and related philosophical Torah perspective toward the demand for privacy. Hopefully, this will help you work out an amicable resolution with your neighbor that takes into consideration the desires and concerns of each of you.

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