Shabbat Parashat Chukat 5777

P'ninat Mishpat: Unauthorized Building by an Apartment Owner

Case: The defendant (=def) and the plaintiff (=pl) own apartments in a six-story building. Years ago, def unilaterally built an apartment on top of his own, and more recently another apartment on top of that one, which he rents out to others. Recently he bought an apartment on the top floor and has built an apartment on top of it (on the building’s roof). Def does not have a building permit for any of these additions, and everything was built on areas that are under joint ownership of the building’s owners. Pl demands that def destroy the rooftop apartment and not allow renters in the other two apartments because of the added noise and strain on the building’s infrastructure. Def responds that since pl did not protest the building project right away, he waived any rights to stop it, and that since the building is a storefront, the addition of another few people does not make a significant difference.

Ruling: According to the law, unless otherwise specified, all the owners of an apartment are partners according to the percentage of their apartment within the building. Def’s building without pl’s permission on significant parts of the building is thus stealing from pl. Def’s claim that some of the neighbors do not mind and he only built on a permitted percentage of the building’s space, which is coming to him as a partner who wants to cash in on his part, is incorrect. A partner can unilaterally demand to take full ownership over a percentage of the property only if it is a property that lends itself to division into appropriate plots (Bava Batra 11a). According to the law, we view apartment buildings as property that cannot be unilaterally divided, and while it is possible to be done with the permission of a certain percentage of the owners, def did not secure such a percentage. Therefore, the rooftop apartment can be destroyed, as pl demanded. While pl could probably have demanded this for all three unauthorized apartments, he did so for only one, and therefore beit din rules only regarding that one. Pl filed a grievance against def before construction was complete, and so it cannot be said that he was silent in a manner that is considered waiving rights.

The gemara (Bava Batra 60a) says that one neighbor can prevent another from opening up a courtyard to a public thoroughfare because it increases traffic. While def claims that the addition of families is insignificant, that claim is true in certain regards but untrue in others. The visitors to the storefront affect only the entrance to the building and do not affect the elevators and noise and mess in joint areas in the top floors of the building. Therefore, pl’s demand that renters not occupy the other unauthorized areas has merit.

Since def has a lot to lose from these preliminary rulings and pl does not gain that much by their implementation, we suggest the two work on a compromise that both can live with.

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