Shabbat Parashat Vayechi 5783

P'ninat Mishpat: Who’s Responsible for the Leak?

Case: The plaintiff (=pl) and the defendant (=def) have adjoining houses. Many years ago, pl and, later, def renovated their roofs. Over the years, there has been a history of leaks into pl’s house from the roof, and there have been various steps taken to try to remedy them, which have had mixed results. Recently, pl brought a professional with a special camera to locate leaks, and he indicated that the main problem is from seepage under the stairwell def built on the roof. Pl therefore demands that def do the necessary waterproofing and pay for the expense of the professional who came. Def responded that the check was not done by the correct professional or in the correct way (a flood test), and that there are several indications that the damage does not come from him. Def also countersued for expenses, the biggest of which was for a wall between the two roofs, which def incurred based on pl’s demands that he act to try to stop the leakage, as def believes such demands had been unjustified.

Ruling: [Much of the ruling deals with technical analysis, and this is not the place to review it. We will focus on principles of Halacha and jurisprudence.]

Beit din agreed not to rely on pl’s expert and had the sides pay for a court-appointed expert, whose identity the sides agreed to. Because the sides were hesitant to pay the costs of this investigation, beit din set out the following rule. If the findings are in support of one side, then the other side shall reimburse him for his half of the expense of the expert.

The expert found that the areas of seepage are in pl’s side of the roof, in addition to flaws in the water insulation of the wall, which he surmises was caused when pl drilled into the wall. Pl pointed out what he alleges are several flaws in the expert’s report, but the expert answered his questions, albeit not to pl’s satisfaction. Since all agreed in advance to the expert, we accept his findings and see no grounds to obligate def.

We move now to the counterclaims. There are signs that the actions that def took to improve the insulation on his side were partially successful. Therefore, we cannot view them as groundless and make pl pay for them. After the expert suggested that there is liable to be damage in the future by means of the wall, def demanded payment to deal with that. We do not accept this claim because the expert was not authorized to determine who caused flaws but only to find where the leaks are. Additionally, the expert did not even say that there was presently seepage from the wall but only that there could be in the future. Regarding the need for the wall, during the inspection, def said twice that he built it for privacy, and therefore it is troubling that his lawyer demands compensation as if it were done to protect pl from leakage. Therefore, no counterclaims are accepted.

Pl demands that another expert evaluate the situation, due to his dissatisfaction with the present expert. Beit din will consider this if pl will fix the problems discovered and, within a year after that, there will still be leakage. Pl will have to pay for that expert, and his appointment will have to be done through beit din.

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