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Shabbat Parashat Kedoshim| 5771

P'ninat Mishpat: Who Is Allowed to Build the Plaintiffs Apartment?

(condensed from Shurat Hadin, vol. VII, pp. 135-139)

Case: The plaintiff (=pl) bought (officially, rented long-term) an apartment from a semi-governmental company. The contract states that the transaction does not apply to “the depths that are under the ground” and that the buyer realizes that any natural resources or antiquities found there remain the seller’s. The defendant (=def) bought a store nearby and thereafter began breaking down his wall and digging, including beneath pl’s apartment without pl’s or the seller’s permission. Pl demands that he stop the work and that he not approach the seller to try to buy the area, to which pl would like to obtain rights and build down. He claims that the area underneath his apartment is his except for anything found in it and that, even if not, he is the one whose property is linked to the area, and he should be the one to buy it from the seller if necessary. Def responds that, as an adjoining neighbor, he has the same rights and that removing his right to purchase the area causes the seller a loss, as it removes competition.


Ruling: Def is correct that pl did not buy the rights to the area in question, but they do have a status of a partner in it, not in the classical sense, but in the fact that the area directly under their apartment is reserved for the building use of his apartment. Specifically, if the apartment would fall or serious repairs were needed, pl would have the right to use the area as the foundation of the rebuilding or the place to begin the work (Shulchan Aruch, Choshen Mishpat 241:6). The S’ma (175:95) says that in such a case, the owner of the house above has precedence over a bar metzra (regular neighbor), and he has the first right to buy the adjoining area. There might be some grounds to argue, if def had already bought the land, whether pl’s rights allow him to employ the rules of bar metzra and cancel the sale of the other buyer (see S’ma 175:88). However, in this case, where no one has bought the area yet, pl has a clear advantage.

It is true that pl’s official status is as chocher (a long-term renter) of his apartment. However, the Shulchan Aruch (CM 175:51) says that even if one party does not have permanent rights in the land, at the point that he has rights he is considered as a partner who has precedence over a neighbor. Pl has another advantage in that he is owner along with this wife, and there is a concept that a bar metzra cannot push off a woman. While there is significant discussion whether this is true when the woman is married (see Maharit II, 4) and we would not allow the married woman to extract the property from one who already bought it, in this case where it was not yet bought, pl has a further reason for precedence.

A final major advantage that pl has is that even if def already legally obtained the area, he is not allowed to dig there because of the damage he might cause to pl’s apartment (see Shulchan Aruch, CM 214:4). Thus, def does not have authority to connect his store to the area in question, whereas pl who is directly above can do so. Thus, def does not enjoy the status of a bar metzra, who is one who is allowed and able to connect his existing property to the one he desires.

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