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Shabbat Parashat Ki Tisa 5775

P'ninat Mishpat: Rules of Bar Metzra (Neighbors Precedence)

(based on Shut Rabbi Akiva Eiger I:140)

Case: Reuven and Shimon share a house, with each one having his own section; they both have equal rights to traverse the house’s courtyard. Reuven has a cellar in his side of the house, with a baker’s oven. Reuven has rented the oven to Levi for several years. Now that the rental period is over, Shimon has asked to rent the cellar from Reuven instead of Levi, who wants to continue renting. The question is whether there is a rule of precedence based on bar metzra rights (precedence of a neighbor or one with another unique connection to acquire an adjacent property), which would dictate that Reuven should allow Shimon or Levi to rent the cellar. 

 

Ruling: Shimon cannot claim that he has bar metzra rights based on his being Reuven’s partner (i.e., allowing a partner to acquire full ownership when his partner wants to divest). This is because there is no part of the property in which they are joint owners. Even though Reuven and Shimon share rights to traverse the courtyard jointly, this does not make them partners. We see this from the following ruling of the Rama (Choshen Mishpat 175:51). The Rama says that if one person owns a house and another owns its attic, and the owner of the house sells it to a matzran (a neighbor), the owner of the attic cannot nullify the sale with the claim that he has precedence (a partner is better than a neighbor), because he is not considered a partner. This is despite the fact that the owner of the attic has rights to traverse joint areas. The important thing is that he does not have rights in the land itself. Although the S’ma (175:95) questions the Rama’s ruling, this is because he considers the ground of the house “responsible” for the needs of the attic, which does not apply in this case.    

Since we have determined that Shimon is only a neighbor of Reuven and not a partner, we revert to the rule that one who rents property has precedence regarding acquiring it over a neighbor of the property. This is true to the extent that even if the neighbor already bought the property, the renter can extract it from him (S’ma 175:116). Although the Taz (ad loc.) takes issue with the S’ma, that is concerning a field next to the one he rents or to buying the property he currently rents. However, in regard to continuing to rent the property, he certainly has precedence over a neighbor.

The Maharshal (Shut 43) rules that regarding the rights to rent from a neighbor a matzran does not have extra rights. In contrast, according to the S’ma and the Taz, a renter is even better positioned to continue renting than a permanent neighbor is to begin renting. Therefore, as far as who the proper person is to give the right to the first chance to rent, it is clearly Levi, the current renter. 

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