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Shabbat Parashat Tetzaveh 5779

P'ninat Mishpat: Fallout from Underground Encroachment part II

(based on ruling 71018 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: Defendant #1 (=def1) built a house next to the lot owned by defendant #2 (=def2). His sewer pipe went partially under def2’s property. In 1998, def1 and def2 signed an agreement whereby they would exchange property so that def1 would get the land over the pipe, but the agreement was never taken to the land authority for implementation. The plaintiff (=pl) bought def2’s plot and built a house on it not along the lines of the property exchange. As pl’s house was being built, in 2004, the parties made a basic agreement by which pl would do landscaping as he likes on top of most of the pipe. Pl claims that the presence of the pipe raised the cost of his development. Additionally, the sewer is faulty and has more than once gotten clogged and leaked, giving off horrible smells; this causes his property to devalue. Pl demands the removal of the pipe and/or compensation for various elements of more than 200,000 shekels. Def1 claims that the land exchange was binding and that def2 asked as a favor not to report it right away to the authorities and that pl was told about the situation before buying the lot. Def2 says that he changed his mind on the land transfer the day after signing that agreement and that it is probably not possible to carry it out legally. He told pl about the problem and demands that pl finish payment for the house and adjudicate with def1. Pl responds that since the contract states that the property is free of the existence of any other parties in it, def2 is in breach of contract and does not yet deserve the final payment.


Ruling:  Last time we saw that the 1998 agreement was not binding.

The relevant question that remains is whether the fact that def1 has been using the land of def2/pl for most of the time without active opposition creates a chezkat tashmishin (the right to continue using another’s property based on tacit approval). The Rambam (Sh’cheinim 8:1) rules that even a short time of usage of another’s property without complaint allows the user to continue even if he did not claim to have made a transaction to obtain rights. Others require that the user has a claim of receiving permission. The Shulchan Aruch (Choshen Mishpat 153:2) rules like the Rambam. There are apparent contradictions about what the Rama’s opinion is. The S’ma (153:32) answers based on distinctions between different acts of chazaka. The Netivot Hamishpat (113:13) distinguishes that if the user is doing things in his own area, just that it affects his neighbor’s property, he can continue to do so. If he wants to continue using his friend’s property, he must have some proof.

Here, in all agreements and understandings, it was assumed that def1 would not be required to move the pipes; the question was about the “price” he would have to pay. Pl even acted on that assumption by developing the land on top of the pipes, which would not have made sense if their presence was temporary. Although sales are final only if a price has been set for them and in 2004, it does not seem to have been clear what the “price” would be, it was clear enough that the situation would continue to give def1 a chazaka.

The question that now remains is how to determine the proper compensation.   
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