Shabbat Parashat Vaeira| 5771

P’ninat Mishpat: The Building of a Balcony Over a Neighbor’s Home

Case: A neighbor on a lower floor (=pl) is suing his upstairs neighbor (=def) for building a balcony over his home, which allegedly stole sunlight from him and lowered his apartment’s value. Def counters that he built the balcony over the section of additional building that pl built with permission, at which time def built a door, which was obviously intended for that purpose (pl did not complain at the time). He points out that everyone in the building had done the same thing, as expected in a neighborhood where everyone needs sukkot. Def adds that pl built a sukka that is covered with a fiberglass roof under def’s window, which allowed robbers to enter def’s apartment, forcing him to spend money on bars for his window. Finally, the loss of light is insignificant since pl’s window is close to a mountain and anyway is not open and does not let in significant light. Pl admits that he knew def would build a sukka balcony but expected that he would ask permission, at which time pl would have asked for compensation.

Ruling: The Shulchan Aruch (Choshen Mishpat 153:1) says that if Reuven wants to build out a pole from his wall opposite Shimon’s window, Shimon can protest because Reuven takes away his privacy when hanging things on the pole. We see from here that, if not for the problem of privacy, when one uses another’s airspace without causing him damage, the “violated one” cannot protest.

When one neighbor builds over the joint property of the building, others from the building can protest if: the addition prevents others from building on the joint property, if it lowers the value of the property by preventing people who would buy an apartment from building, or if it takes away sunlight. However, neighbors from a different building, who are not partners, can build if there are no privacy issues, as long as they leave four amot of space, even if they thereby lessen light, air, and view (see Pitchei Teshuva, CM 154:23). The idea of leaving four amot applies even when one builds on top of his neighbor (Shulchan Aruch, CM 154:23). Here too, though, among joint owners of a building, one has to leave more than four amot, if failure to do so would impinge upon a usage or cause loss of value.

What, though, happens if Reuven gives permission to Shimon to build and later Reuven wants to build and Shimon wants to prevent him? The Z’chor L’Avraham says that even if no stipulation was made, we can assume that the permission was on condition that he would receive reciprocal treatment. In our case, as well, we can assume that def’s letting pl build was on condition that he too could build under similar circumstances. This is especially true in this case, where def is correct that pl loses little by the building of the sukka balcony.

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