Shabbat Parashat Tzav 5778

P'ninat Mishpat: Disputes Between Neighbors over Rights in a Building

Case: The plaintiff (=pl) bought an apartment on the second floor of a building in which the defendants (=def) previously bought a ground-floor apartment. The courtyard on the left side of the apartment is of interest to both pl and def but to no other neighbors. There are three basic disputes between the parties about their mutual rights. Each which will be discussed for one installment.

Dispute #1: Pl claims that before he bought his apartment, def gave him permission to build new steps and an entrance into his apartment through the courtyard. As pl prepares to get municipal permission to build, def has decided to oppose this. Pl would not have bought the apartment and will not stay in it without this addition, and so the abrogation of the agreement caused him damage. He demands that def either rescind their opposition or pay significant damages. Def admit to a conversation about the steps but denies agreeing. They claim that they did not protest because they did not realize they had the ability to do so.       

Ruling: After reviewing each side’s version and checking text messaging between them, the following picture is quite apparent. Def believed that pl was able to build the steps without their permission because they thought that the courtyard was divided among them and that the relevant part belonged to pl. Pl did nothing to dispel that understanding. In fact, he purposely did not ask def to sign that they were giving permission because he feared that this might encourage def to oppose it.

Under such circumstances, even if there was agreement, it would be mechila b’ta’ut (relinquishing rights under false pretenses), which is not valid. Furthermore, such a granting of building rights would not work without a kinyan (act of finalization). In fact, even an act of kinyan would not be effective, as def would not be transferring anything to pl but agreeing not to oppose. Such an agreement is called a kinyan devarim, something too amorphous for a kinyan to work.

As far as def paying for misleading pl to rely on their agreement in order for them to decide to buy, this claim is also rejected. This is unlike the classic case of payment for creating reliance known as “go and I will follow you” (Shulchan Aruch, Choshen Mishpat 14:5). First, there the “damager” initiated the idea of going, whereas here the alleged approval was something that pl raised and pressured def on (see Rav Yisraeli in Piskei Din Rabbaniim X, p. 15). In such a case, the level of assurance that he could rely on the agreement being permanent is required to be much greater than existed here. Additionally, pl did not act in good faith here, as they purposely avoided letting def understand that their partial acquiescence had legal importance, so he has himself to blame.

Finally, the payment in the case of “go and I will follow you” is based on damages. Here, there is no objective damage, as pl bought property which is worth as much as he paid and is still worth at least worth at least that amount, whether or not he is happy with his choice of property.    

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