Shabbat Parashat Bechukotai 5779

P'ninat Mishpat: Dissolution of Real Estate Joint Ownership after Divorce

Case: The plaintiff (=pl) and the defendant (=def) are in the midst of divorce proceedings (their short marriage was a second for each). Pl has lived in her yishuv (=yi) for 20 years, as do a few of her children. Pl and def bought together a home under construction, which required a bar reshut (equivalent to ownership) from the Jewish Agency Settlement Department. The apartment is almost finished, and, to this date, pl has paid more than half of the costs. Pl wants to be recognized as the owner (she will return his payments) because they received rights to build only because of her seniority and because the degree to which def was late in paying his part shows that they both realized that it was hers. Alternatively, she wants to buy out def’s rights because they are getting divorced and she has a much deeper connection to yi. Def wants to buy pl’s part in the house and rent it out, and, if not, he wants to wait until construction is complete before selling his part. He adds that pl received the bar reshut only because she was married at the time.

Ruling: The contracts with the Jewish Agency and with the builder list pl and def as equal partners. The halacha is that even if one partner paid more/earlier than the other, the equal rights of the two remain (Rama, Choshen Mishpat 176:7). Since def is willing to pay his full part, he remains a full partner.

When both partners want to buy out the other’s share, they remain partners (Shulchan Aruch, CM 171:8). However, we rule that if the partners are a divorced couple, we break up the partnership. The gemara (Ketubot 28a) says that a divorced couple must not live in the same neighborhood (/project) and that it is easier for a woman to move. There is a machloket whether this applies just to the question of who will live where or even to how to break up a jointly owned property. However, Rav Lavi (Shirat Devora II:32) posits, based on the Sha’ar Mishpat, that when there is equal ownership, we use logic to decide (even based on nominal factors) to whom it makes more sense to give the property (the other is compensated). In this case, the factors that pl presented are more significant than def’s, as her life in yi is clearly more important to her. We note that even if def were to receive the house, he will not live there if he is not accepted as a member of yi, which is increasingly likely after the divorce.

We now discuss when to break up the partnership. The Shulchan Aruch (CM 176:16-17) rules that when there is no set time for a partnership, either side can end it when they want. In the case of a couple, the home partnership is assumed to end with the divorce, which is now. Def’s claim that the house’s price will go up when it is ready and therefore he loses by doing it now, is a weak one because the construction is close enough to completion that the value will not change much. The reason for the small change is the danger that there will be problems in completing the construction; since pl accepts these dangers, she does not gain improperly.

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