Shabbat Parashat Tazria Metzora 5778

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

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 will be discussed for one installment.

Dispute #3: Pl wants to destroy an illegally built extra room in def’s apartment, which does not have proper authorization, because it takes away from the joint courtyard. If not, def should pay compensation. Def responds that the room was part of the apartment years before they bought it, and therefore there is a chazaka that they had acquired permission/rights to build, which as a buyer, def are not required to know the details of. Furthermore, according to pl’s building plans, they are going to build on top of the room in question, so how can they demand to have it knocked down? Additionally, def demands payment from pl for the use of the roof of the room in the past and in the present.

Ruling: Although the room in question was built on the joint courtyard, its status is different from the courtyard itself (see previous installment). Although usually there is no chazaka for the uses one partner does with the joint property, it is different when he builds a permanent structure (Rambam, Shecheinim 5:5). Then we say that the other partner should have protested, and if he did not, we can presume mechilla. The Maharit (II, Choshen Mishpat 63) agrees and explains that while usually a partner can reason that one side will use one side and he will use another, it is different when something is built. In Piskei Din Rabbaniim Yerushalayim (VII, p. 295), the dayanim ruled that we do not assume mechilla when there is chazaka that is contradicted by the Tabu. However, they agree that if the area is now in the hands of a buyer, we make the claim on behalf of the buyer that the seller handled the matter properly. On the other hand, according to the opinions that there is no kinyan without writing in the Tabu, this will not help.

Despite this, in this case, where pl wants to build on top of the room, they indeed cannot demand that the room be destroyed. In a case where both sides benefit from the existence of the room, it would be acting in the manner of Sodom to destroy it (see Ritva, Bava Batra 6b). This is true only if indeed pl is able to build on top, so that def are required to agree to pl’s building, assuming it otherwise receives municipal approval.

In fact, if pl wants to build on top of the room, he will have to take part in the past cost of the basic construction. If pl will not build, he will have to pay for the usage of the roof for other activities, as they bring him benefit and cause slight damage to def who live below (see Tosafot, Bava Kama 21a). Regarding the past, we exempt pl because it was done when there was a lack of legal clarity.

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