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Shabbat Parashat Ki Tisa| 5764
Reuven has a window in his wall, and his neighbor, Shimon, wants to build a wall opposite the window in a way that minimizes Reuven’s air and light. Shimon must distance the wall 4 amot (approximately 6 feet) from Reuven’s window (Shulchan Aruch, Choshen Mishpat 154:21). The commentaries explain that this not a case where the “damager” must distance his damage, because Shimon is not damaging but is simply building on his property. The fact that Reuven can no longer use Shimon’s property as a free conduit for light and air is Reuven’s problem and should not limit how Shimon uses his land (see K’tzotz Hachoshen 155:9). In order to force Shimon to distance his wall, Reuven must have a chazaka (an acquired right) which gives him special rights in Shimon’s property (S’ma 154:49). Otherwise, we tell Reuven that if air is important to him, he shouldn’t have built his window so close to his neighbor’s property.
How does one acquire such a chazaka? One way is to have built his window at a time when no one owned the adjacent field. Even though he didn’t acquire the adjacent land, he did acquire certain rights in it, i.e. the right to use it as a free conduit for air and light. Another way is simply to pay for or otherwise receive permission from Shimon to build the window, with the understanding that Shimon will enable him to make full, normal use of that window.
A third way of acquiring a chazaka also explains how we can usually demand more than 4 amot of space, based on municipal zoning laws. The Beit Yosef (CM 155, cited in S’ma 154:35) brings the concept that when one buys land from the king, there is an unspoken understanding that the king gives him rights in the neighboring properties which enable him to make the most effective use of his field (his neighbors have reciprocal rights in his property). Our king, for this matter, is the appointed governmental agencies, who (should ) determine what standards will create optimal living conditions for the majority of the population. This includes how close to another’s property one can build.
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