Shabbat Parashat Nitzavim Vayeilech 5777

P'ninat Mishpat: New Buildings Blocking View – part I

Case: The plaintiffs (=pl) are a group of residents who built together apartment buildings in a yishuv a few years ago. Now, the board of the yishuv (=def) is in the midst of building buildings for new residents across from pl’s buildings in a manner that pl believe will significantly take away from their view (even though the new buildings are down the slope of a hillside). Pl claim that def promised, while marketing the project, that pl’s view would always be protected, which def denies. Def also argues that the purchase contract states that the contract erases any previous understanding between the sides and that they obligated themselves not to protest further building plans. Pl also claim that def may not build because a certain planning approval (taba) was not received yet. Several months ago, pl planned to challenge municipally def’s building plans. At a meeting between the sides, an agreement was written (but not signed) stating that the wall of the new building’s roof would be no higher than the level of the garden of the lowest set of pl’s apartments. Pl claims that they were misinformed when they made that agreement and that, in any case, the rooftop solar heating apparatuses will extend beyond the aforementioned level.      

Ruling: Pl may not try to stop the building due to a lack of taba since their own apartments suffer from the exact same deficiency. 

Assurances before pl bought their apartments were given by Reuven, who was working on marketing on def’s behalf; his assurances are equivalent to those of def. However, def’s claim that the contract cancels the significance of oral assurances given previously seems pertinent. The Shulchan Aruch (Choshen Mishpat 207:4) says that even if one announced a while before a purchase that the purchase is only with certain conditions, if he did not repeat the conditions at the time of the purchase, they are not binding. Only if there is a clear intention to make the purchase conditional is it unnecessary to make a stipulation at that time. In our case, the contract signed at the time of the purchase does not mention unimpeded view and waives any previous commitments. Since a very partial blocking of view is not the type of situation regarding which we would clearly assume the purchase was conditional, def was not originally required to leave pl’s views unimpeded.

It is difficult to accept pl’s claim that the contract was too long to notice every provision and that they therefore had a right to believe that previous oral commitments would be binding. However, we will also discuss the matter of the assurances as if they were binding. There is evidence that most of pl’s group inquired about the view before buying, and it was significant to them. It also appears that most were told that there would be buildings beneath them but that generally they would maintain a view. It seems, then, that their view would be affected somewhat, with the question being of degree. It appears that they were told that the new buildings would not be higher than the bottom of pl’s apartments.

Next time we will look into the halachic status of damaging one’s view.

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