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Shabbat Parashat Miketz 5783

P'ninat Mishpat: Damages of the Building of a New Neighbors House part II

(based on ruling 81015 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff’s (=pl) house has been next to an empty lot in a yishuv (=yis) for many years. Recently the defendant (=def) bought that empty lot from yis and built; he is awaiting an occupancy permit. Pl claims that the building damaged his property in a few ways, and pl and def have complaints over yis’ handling of the situation. Def also has counterclaims against pl. [We will discuss specifics in installments.] Pl has claims that in order to do the work on the cliff that became unstable due to def’s building, he had to take apart his pergola, and it cannot be reconstructed; therefore he is demanding 9450 NIS to replace it. Def countersued (in order to counter pl’s claims, not to receive payment) for several expenses he claimed to incur to protect pl’s property. One was for a retaining wall, due to the height difference between their respective properties. Pl denies that he needs or makes use of that wall. Def complains that yis misrepresented the situation and extracted too high a price for the lot by claiming that there were other people interested in buying and by hiding the problems stemming from def’s expected future interactions with pl. Therefore, yis should pay the award that the previous beit din gave to pl. Def also demand that yis pay for the drainage of rain water which comes down from public property into def’s property.

 

Ruling: [We move on to discuss additional elements of the various claims.]

Regarding the pergola, it was 10 years old, and its “life expectancy” is 20 years. Therefore, pl cannot make a claim in its regard for more than half the cost of a new one. Pl was also unable to prove that the pergola could not have been reconstructed. Therefore, based on compromise, we will obligate def to pay only 1800 plus VAT toward the installment of a new pergola.

Regarding the retaining wall, def did not prove that the properties’ height difference makes the wall required in this case. Although one leg of pl’s pergola is leaning on it, this does not demonstrate that the wall as a whole was needed for that purpose. Although pl agrees that he wants something to preserve privacy, he planted bushes for that purpose and claims that some simple poles and a urethane sheet would have sufficed until they grow. We accept pl’s claims that def cannot force pl to compensate for the wall.   

Def was unable to prove that yis purposely deceived him in presenting the lot. There is no evidence that the ruling of the previous beit din was not for things that def could have avoided if he had acted differently. Most importantly, def signed a contract with yis that clearly exempts yis from paying for any damages def might incur in developing the property. Taking care of drainage of rainwater is part of the development of def’s property, which, the contract states, is fully the buyer’s responsibility. Beit din praises def’s efforts to protect pl’s property, but the expense of those efforts is not a damage for which def can demand payment.

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Nir Rephael ben Rachel Bracha
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