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Shabbat Parashat Ki Tisa| 5766

P'ninat Mishpat

Building a Balcony on Top of Another’s Room - Based on Halacha Psuka’s Condensation of  Shurat Hadin, vol. III, pp. 266-268
Case: The plaintiff (=pl) and the defendant (=def)are neighbors. Def built a balcony upon which to place a sukkah. Pl objects with the claim that the balcony takes away from the view and the light of the room over which it was built and demands to be compensated. Def responded that pl’s window is anyway facing a cliff and adds no significant view or light. Additionally, pl’s room that is being covered was built beyond pl’s propertyline with the permission of all of the building’s apartment owners, including def. Def claims that he did so with an understanding that he would be allowed to build on top of it. Evidence of this is that def built a door from his apartment to the area above the room in question prior to the construction of pl’s added room, which can only be explained by his understanding that he too would be able to build out.
Ruling: In general, building in a way that takes away from a neighbor’s view is not considered damage (Pitchei Teshuva, Choshen Mishpat 154:8). Regarding taking away from another’s airspace, usually it is enough to leave 4 amot between the newly built wall and the existing window (Shulchan Aruch, Choshen Mishpat 154:23). In this case, there is an added factor. The Shulchan Aruch was discussing a case where one built in his own property, with the complaint being that it is still wrong to take away another’s airspace. In this case, def built in the airspace owned jointly by dwellers of the building. Therefore, the other owners can object any time there is significant loss of benefit from their property as a result. However, it has been demonstrated that in this particular case, the amount of lost airspace and light is negligible as the window in question is anyway kept closed all of the time as it opens to a nearby cliff.
Furthermore, Z’chor L’Avraham (II, Nizkei Sh’cheinim) says that in a case where a person allows his neighbor to build out, the neighbor cannot object when the former builds out similarly. This is because there is a clear assumption that one gave permission to the other with the understanding that he would get similar treatment. [Ed. Note- The assumption of mutual permission seems true only when the second building project does not critically take away from the ability of the first to benefit from his work. Otherwise, the first could claim: “Had you told me that you were going to build like that, I wouldn’t have bothered to build in the first place.” An example is when one builds a balcony for a sukkah, and the upstairs neighbor builds one directly overhead in such a manner that the first sukkah becomes invalid.]
In this case, the value of pl’s apartment is not expected to go down as a result of def’s construction.
Therefore, pl has no grounds to object to def’s construction or to demand compensation.
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