Shabbat Parashat Toldot 5785

P'ninat Mishpat: Hezek Re’iya in Our Times

Case: The plaintiff (=pl) and the defendant (=def) built houses on adjoining lots. Pl’s lot is 1.25 meters higher than def’s, and the front of pl’s lot is 1.5 meters higher than its back. The municipal plans were for pl’s lot to be two-leveled, but pl requested of the municipal planning board to raise the lot – the front by .5 meters and the back by 2 meters. Def protested the changes, and the board decided to allow the back to be raised to the level of the front but not to allow the extra raising. The change required a higher retaining wall between the lots, and there were financial questions about who pays how much for the wall, which beit din dealt with. [We will not address that here]. Def complained that raising pl’s lot affected their privacy in his chatzerot (courtyards/ garden areas) in front and in back of the property and demand an arrangement to prevent pl from seeing into def’s property.

Ruling: The gemara (Bava Batra 2b) discusses whether hezek re’iya (damage of lack of privacy) is an enforceable issue; the halacha is that it is considered real damage (Shulchan Aruch, Choshen Mishpat 157:1), which can require a party to build a fence so that he cannot see into his neighbor’s property. Clearly, contemporary society does not care about hezek re’iya as much as people did in Chazal’s times. Rabbeinu Yona and the Rosh (stringent) disagree whether a minhag to not take a certain step due to hezek re’iya changes the halacha, and the Rama (CM 157:1) rules that it does not.

The usage of chatzerot is somewhat different than in the times of the gemara, as they used to be used for functionality (see Rashi, Bava Batra 2b), often including activities that called for privacy. Such things are a rarity nowadays, and it is much more common for living quarters to not have a chatzer. Still, in our times, some gardens are used for intimate meals or the like. There is also room to distinguish between different situations, such as between chatzerot that are anyway visible from public thoroughfares and those are not (the gemara (ibid.) implies that this distinction is pertinent but limited). We can learn from the gemara (Bava Batra 6b) that steps taken to remove hezek re’iya should be moderate and balanced. In our case, then, the changes have little effect on the front chatzer but mainly to the back one, which faces a wadi and its height difference is greater.

Should the planning board decision impact on the matter? While the board rejected the hezek re’iya claims, that does not mean that halacha must agree (notably, the courts can also reject them). However, after def decided not to appeal that decision, they cannot now demand of pl to undo building that he did based on the permits he received, or require the continuation of the building of the wall, which they demanded only after pl made monetary claims against them. This is in line with the Shulchan Aruch’s (CM 154:7-8) ruling that when one took action without a neighbor’s opposition, the neighbor can no longer oppose him based on hezek re’iya.

Therefore, beit din rules that a fence of reeds should be installed on top of the retaining wall in the back of the property.   

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