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Question #1:After moving into a new apartment, my grandmother discovered that her next-door neighbor practices his drums every day. On some days he even has band practice in his house. When we asked the drummer to limit his hours or decrease the volume, he insisted that he has been doing this for years and that this is his livelihood. Grandma finds the noise blasting through the walls highly distressing. Can we force the neighbor to drum elsewhere?
Question #2: Yehudah and Tamar dwell in a semi-detached house. Levi purchased the other side of the house as an investment, and rented it out. A few weeks later, Tamar calls Levi to complain about the volume and late hours of noise emanating from the new tenants and asks Levi to have them shape up or ship out. Levi meets with his tenants, attempting to explain that their behavior is inappropriate for the neighborhood, but they insist that their behavior is normative. If this continues, do Yehudah and Tamar have the halachic right to insist that Levi terminate the tenants’ lease?
Question #3:There is always such a racket upstairs! I am certain that their kids are rollerblading or playing basketball right over my head, but their mother insists that they are just normal, active children. What may I do to improve the situation that is halachically acceptable and will not land me in jail?
Question #4: Several years ago, Reuven (who lives on the ground floor) affixed a basketball hoop to the wall of the apartment building and laid out a regulation-sized half-court. Shimon, who now lives directly above Reuven, would like to hang a clothesline outside his window, but as any large item hanging from the clothesline will lie on the hoop and become dirty, he would like Reuven to remove the hoop to a different location. This, of course, will ruin the basketball court.
BACKGROUND TO THE SHAYLOS
Unless local custom dictates otherwise (a concept I will explain shortly), one may use one’s house for normal household use, provided that the activity does not damage my neighbor’s person or property. "Typical domestic use" includes work done in one’s house to earn a livelihood. For this reason, at the time of the Mishnah, one could use one’s house for simple manufacturing, and a neighbor could not object to a residence being used as a bakery or to dye clothing, even if the neighbor’s house became uncomfortably warm as a result (Mishnah Bava Basra 20b).
AN EXCEPTION
There is an exception to this general principle: a neighbor may prevent a store from opening in a residential property. Why is a store different from other livelihoods? Because a store generates a lot of foot traffic, a neighbor has the halachic right to prevent the noise and bustle.
But do people entering and leaving a small household store create more discomfort for the neighbor than the heat of a baker’s oven or a dyeing operation? Why does the Mishnah rule that one can prevent the neighbor running a store, but not a bakery?
The reason is that, although the discomfort generated by the store may sometimes be less than the heat of the oven, the Mishnah forbade the store because its proprietor can sell his wares in the marketplace, which, in that era, was the primary business location in town. Since it was unnecessary to sell merchandise in one’s house, insisting that a neighbor sell his wares elsewhere did not jeopardize his livelihood. Manufacturing, on the other hand, was generally done in people’s homes (Shu’t Chasam Sofer #92).
Two precluding uses
Of course, we then need to clarify the next issue: What is the halacha when two permissible domestic uses preclude one another? For example, Upstairs wants to use his house as a warehouse to store grain, whereas Downstairs wants to use his house as a bakery. Both of these uses are considered "typical domestic use," since each is using his domicile as a means of earning his livelihood. However, the two uses are mutually exclusive, since the heat rising from the bakery will ruin the grain. May Upstairs prevent his neighbor from baking?
The Mishnah rules that whoever began his operation first has the right to continue. If Upstairs began storing grain before Downstairs opened his bakery, the bakery may not be opened. However, if Upstairs has not yet begun to store grain, Downstairs may open a bakery in his house. Once one neighbor begins using his house for a certain purpose, a second neighbor using his part for an incompatible purpose is considered as creating damage.
WHY DO WE CONSIDER BAKERIES AND DYE FACTORIES "NORMAL HOUSE USES"?
In earlier times, most people making a living from crafts, small manufacturing, other cottage industries or trading used their house as their base of operation. Thus, using your house as a bakery, factory, or warehouse was normal household use.
DO LOCAL LAW AND CUSTOM AFFECT THESE HALACHOS?
Indeed they do. In general, halachos that involve financial arrangements between two parties are governed by the prevalent local practice. This is called, hakol keminhag ha’medinah, "everything follows local custom." The rationale is that the parties assume that local custom governs their relationships, and includes that people buy or rent a house or apartment assuming that they and the neighbors will follow the accepted local norm. Therefore, today one may not open a bakery or dyeing operation in a residential building since it violates common practice.
Everything depends on contemporary local custom. Thus, examining the different responsa discussing these issues provides an interesting glimpse into our forebears’ livelihoods and lives. For example, a nineteenth-century responsum discusses the following situation:
A man passed on, leaving his large house to his three sons, who divided it into three apartments for themselves. One son opened a bar in his apartment, which was apparently an accepted practice in those days. However, the other brothers wanted him to close it because of the quantity and type of traffic it generated (Shu’t Chasam Sofer, Choshen Mishpat #92). On the other hand, the bartender brother contended that this was his livelihood and as such he is permitted to operate his livelihood in his residence.
When the rav who was ruling this issue referred the shaylah to the Chasam Sofer, the rav discussed whether using your house as a tavern is considered a legitimate domestic use. Superficially, it would appear that it is not, just as one may not use one’s house as a store, since it is not considered normal household use when many customers visit a residence. However, the rav who referred the shaylah noted that it was common practice (in those times) to sell sugar or coffee out of one’s house because this was necessary for people’s livelihood. Even though these situations should also be prohibited according to the Gemara, nonetheless, minhag hamedinah permitted it, and perhaps this same custom could justify opening a tavern in one’s house. Furthermore, the rav contended that a tavern is not a business that one can carry out in the town’s marketplace, because a bar has to be a place conducive for people to sit together and relax.
The Chasam Sofer suggests a reason to require the closing of the tavern, based on the type of clientele it generates, but does not rule conclusively that this would provide a legitimate claim to close it. Thus, we see that what would seem highly obvious to us -- that it is forbidden to open a tavern in your residence against the wishes of your neighbors -- was not obvious to the great poskim who ruled on this issue two hundred years ago. This demonstrates how times change.
THE DRUMMER
We can now try to apply the principles we have learned to the cases we mentioned at the beginning of the article. In our first shaylah, Grandma’s neighbor practices his drums, thus disturbing her. Grandma would like him to limit his hours or decrease the sound, but he insists that he has been doing this for years and that this is his livelihood. Can we force the neighbor to drum elsewhere?
Is drumming in your house an accepted practice? Can one claim that this is a permitted hobby in a residential neighborhood? In addition, can one claim that this is necessary for one’s livelihood?
This would primarily depend on the accepted local custom. If, indeed, drumming is permitted during daytime hours and the drummer’s activities are legal and accepted according to local ordinance, then Grandma may have no right to prevent him from continuing his activity. However if local custom precludes this activity, one could prevent him from drumming even though it is his livelihood.
Thus, if Grandma moved into a retirement community where one would assume that everything will be nice and quiet, she can certainly insist that her neighbor drum elsewhere.
WHAT IS THE HALACHA IF THERE IS NO LOCAL CUSTOM?
In this particular case, the parties involved lived in an area where there is no established practice prohibiting drumming during daytime hours. Grandma’s family wanted to know whether there were halachic grounds to prevent her neighbor from drumming when it greatly distressed her.
From what we have mentioned above, it appears that the drummer has a legitimate claim to use his home for his livelihood. However, this is not always the case, as the following 14 th century responsum indicates:
A weaver had a home-operated business, which utilized a large and noisy loom. Although he had been operating this business for a number of years, his neighbor sued him in beis din to remove the loom from the property because of two claims:
1. The loom was causing damage to their common wall.
2. The wife of the neighbor was ill, and the noise disturbed her.
The Rivash (Shu’t #196) ruled that both claims were legitimate, and that the weaver must remove the loom even though it had been operating for years. He contended that, although most people can tolerate this amount of noise, someone who is highly sensitive or ill can legitimately claim that noise injures them, thereby requiring the neighbor to cease the operation (Rama, Choshen Mishpat 156:2; see also Rama, Choshen Mishpat 155:39).
It is historically noteworthy that the Rivash did not prohibit having a large loom operating in one’s house under all circumstances. On the contrary, the Rivash implies that one could operate such a loom if it did not damage the property nor injure one’s neighbor.
Thus according to the Rivash’s psak, in the case of Grandma’s neighborly drummer, if her health is fragile and she would be ill-effected by the drumming, one could prevent him from drumming.
NOISY NEIGHBORS
We can now examine the background behind Questions #2 and #3 above: In question #3, the downstairs neighbor finds the noise from the active family above them to be quite intolerable. The upstairs neighbor insists that this is the standard noise of normal, active children. Can downstairs ask beis din to force upstairs to relocate?
Aside from the questions of local custom (minhag ha’medinah) discussed above, we need to clarify something else in this case: Is the upstairs noise unusual, or is it simply the usual bustle produced by a large household, particularly one with children, but the downstairs neighbor is extremely sensitive to noise? Does the downstairs neighbor have a valid claim that the upstairs neighbor should be quieter, and if he does, must the upstairs neighbor relocate?
Similarly, question #2 also hinges on whether the neighbor’s noise is abnormal, regardless of who lives next door. If the neighbor is a bit noisy, and the complaining neighbor is merely more sensitive than most people, there are no grounds to require the termination of the lease. On the other hand, if the neighbor is really objectionable, the landlord should terminate their lease on this basis.
The Chazon Ish (Bava Basra 13:11) points out that the Rivash’s case involved use of a loom, which, although suited to household use according to Chazal’s definition, is not a typical household use. He contends that one may not prevent someone from using his house for a typical household use, even if a neighbor finds the noise level distressful. Thus, someone whose family makes a great deal of noise may continue to do so. Even if a neighbor becomes ill and is intolerable of such noise, he still cannot force the noisy neighbor to move. Therefore, one cannot force a neighbor whose children cry in the middle of the night to move, even if you lived there first. However, you can prevent them from having the kids play ball or rollerblading in the house since these are not typical household uses when you live above someone else.
Rav Tzvi Spitz, a dayan in Yerushalayim, discusses the following case: A family adopted a foster child, and the neighbors complain that the child makes loud noises at all hours of the night, disturbing their rest. The neighbors contend that, although it is a mitzvah to take care of a foster child, the foster parents have no right to perform their mitzvah at the neighbors’ expense. The neighbors contend that they have a right to enjoy peace and quiet in their apartments. Can the neighbors force the foster parents to relinquish the foster child or move?
Rav Spitz ruled that since taking care of children is considered the major purpose of a house, the neighbors cannot claim that their rights preclude the rights of someone to raise a child in their house, and furthermore, one cannot distinguish between raising one’s own child or raising someone else’s (Minchas Tzvi 1:10).
HOOP VERSUS CLOTHESLINE
In many places it is standard domestic use to have a clothesline hanging outside your window. In these locations, one has a right to hang a clothesline. On the other hand, is it normal domestic use to hang a basketball hoop? If this is a location where both uses are considered normal, then whoever was there first would have the claim, similar to the Gemara’s case of the bakery and the storage area. If the right to a laundry line is considered normal house use, and the basketball hoop is not, one could argue that the hoop should be taken down to make way for the laundry line.
With a healthy dose of mutual good will, most people should manage to live with their neighbors in peace and tranquility. And in cases of conflict, we must not hesitate to use halacha as our guide, just as we do in all other aspects of our lives.
This Shiur is published also at Rabbi Kaganof's site
