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Shabbat Parashat Shemini 5773

P'ninat Mishpat: Balancing Payments

(from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)

[Based on a case discussed in recent weeks.] 

Case: Neighbors made a request together, based on building plans, to change the taba (urban building plans) of their apartment to enable them to build beyond the original limits of their building. Pl received permission to build more than def asked for. Def is countersuing to receive tashlumei izun (payment by an owner/partner in a building to other owners for the amount above his ownership portion of the building that he used in his expansion).   


Ruling: The idea of tashlumei izun is based on paragraph 71b of the Law of Real Estate. The provision states: “The apartment owner whose apartment can be expanded by a higher percentage than his percentage of ownership in the joint building and who is requesting expansion, must pay, at the time that a decision for expansion has been made, tashlumei izun to the owner of an apartment that cannot be expanded or whose expansion is less than the latter’s percentage of ownership in the joint property.” Let us stress that these payments are due even when it is not physically feasible for the other neighbors to use the area that his neighbor is using, e.g., if the expansion is on the roof to which only one has access. The logic is that the extra area they are using is considered owned by all the building’s owners.

First we must discuss our general approach to a law of the land, as it applies to interpersonal monetary affairs. The Chatam Sofer (V, Choshen Mishpat 44) posits that beit din should evaluate whether we would institute the law if we had the authority to do so. (Even when a law is acceptable, it is beit din’s responsibility to interpret it until society accepts a specific interpretation as customary.) Many contemporary dayanim and poskim adopt this thesis (see Piskei Din Rabbaniim VI, p. 382) and do not see it as in conflict with the Shach’s opinion that one should not apply the law of the land to interpersonal affairs when they contradict Torah law. In general, the idea of tashluei izun is in consonance with the Torah’s approach. One should compensate when he takes another’s property rights permanently, in which case demanding payment for usage is not an example of “forcing over the behavior of Sodom.”

In our case, before the change in taba, all legal building rights were already exercised. The municipality extended the rights according to the residents’ presented plans. Def could have requested to increase his area by more than he did, and it is possible that it would have been accepted, and then it is possible that there would have been no tashlumei izun because he would have used as much as pl did. In general, the rulings of the courts have been that the main determining factor of tashlumei izun is the lost rights of neighbors, not the advantage of the one who built. This is in line with the idea of not denying benefit in the manner of Sodomites. Here, def lost nothing but were actually aided by pl’s building (it allowed them to build on the extension’s roof). Furthermore, the area added by the changed taba was never owned by def but was apportioned according to the building plans to those who thus requested. Therefore, def does not have rights for tashlumei izun.
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