Counter Claims – part III (Privacy, Housing Unit, Pipes, Aravot) | Beit Din Eretz Hemda - Gazit | Beit Midrash

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P'ninat Mishpat

קטגוריה משנית

Case: [We continue with repercussions (additional counter claims) of a dispute over rights to a courtyard.] The defendants (=def) complain that the plaintiffs’ (=pl) children look into def’s courtyard for extended periods and throw objects. Also, while pl were given rights to build on the roof, def complain they were not given permission to build a housing unit, which adds people to the building. Def also complain of two pipes that cause damage when they reach def’s property and demand that they be redirected. Finally, def claim that when pl were given permission to build a temporary storage area in the courtyard, pl promised to move def’s arava tree that had been there, and pay 400 NIS a year if it died (which it did) until it is replaced.

Ruling: Privacy: Pl cannot be made to seal the window through which their children allegedly disturb def because they have a chazaka on the use of that window (see Shulchan Aruch, Choshen Mishpat 154:7) after years of it being used even after def had exclusive rights. On the other hand, the Rama (ibid.) points out that when there is chazaka for the window, that means that the window can exist even though one could look, but it is forbidden to look at his neighbors’ property in a manner that is personally damaging. Therefore, pl are to firmly instruct their children not to look (or obviously to throw things down). If def want, they can erect a fence at the edge of the courtyard to protect their privacy.
Housing Unit: In general, it is problematic to add additional residents into a joint property (see Shulchan Aruch, CM 154:1). However, def also built an extra housing unit on their extension, and the rule is that one cannot object to a change a neighbor made if he did the same thing himself.
Pipes: Neither side proved whether water coming from pl’s property causes damage to def’s property (they were asked to film where water goes during a period of rain and neither did). However, based on what we know, there is likelihood that water falling can cause problems. Therefore, pl must extend the pipes so that they do not fall in the proximity of def’s property. We will not levy payments for the unproven claim of damage in the past.
Aravot: The demand for pl to pay 400 NIS a year for the arava tree that was displaced is rejected. The claim that pl agreed to such a thing was not proven, and the nature of the 400 NIS is not a matter of loss but of unrealized profit, which halachically is viewed very differently.