Shabbat Sukkot 5778

P'ninat Mishpat: New Buildings Blocking View – part III

Case: The plaintiffs (=pl) are a group of residents who built together apartment buildings in a yishuv a few years ago. Now, the board of the yishuv (=def) is in the midst of building buildings for new residents across from pl’s buildings in a manner that pl believe will significantly take away from their view (even though the new buildings are down the slope of a hillside). Pl claim that def promised, while marketing the project, that pl’s view would always be protected, which def denies. Def also argues that the purchase contract states that the contract erases any previous understanding between the sides and that pl obligated themselves not to protest further building plans. Pl also claim that def may not build because a certain planning approval (taba) was not received yet. Several months ago, pl planned to challenge municipally def’s building plans. At a meeting between the sides, an agreement was written (but not signed) stating that the wall of the new building’s roof would be no higher than the level of the garden of the lowest set of pl’s apartments. Pl claims that they were misinformed when they made that agreement and that, in any case, the rooftop solar heating apparatuses will extend beyond the aforementioned level.      

Ruling: Based on what we have already seen, pl have the right to prevent def from building in a manner that significantly harms their view, in accordance with what they were assured beforehand.

In this case, we do not have to decide the exact parameters of what is improper damaging of view because of the agreement arrived at between the sides. At that time, if pl was entitled to further protection, they were mochel them (relinquished the rights) in a manner that does not require a kinyan to finalize (see Shulchan Aruch, CM 241:2). It is improper for pl to try to extricate themselves from the agreement with the claim that it was based on a mistake or otherwise not binding after def already spent money in implementing it.

The question of the solar heating apparatuses, though, is pertinent, as it is not clear what was agreed, if anything, in this regard. The language of the agreement is indeed inconclusive on this matter. Therefore, it is proper to implement the matter based on the logic of the agreement (see Shulchan Aruch, Choshen Mishpat 220:8), to prevent a certain level of view disruption, and this should apply to the apparatuses as well. It is practical to have the solar panels lie mainly flat on the roof so that they do not affect the view. However, upon reviewing the options for placing the water tanks, the following compromise position is the most that pl can demand. The tanks will be horizontal and will be placed in a direction in which they block the view the least possible. However, since there is no viable way to do it within the original guidelines, they will be allowed to extend 10 centimeters above the walls of the roof.

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