Precedent of Using a Pipe Inside the Wall

B'SD Here is the case: Reuven and Shimon live in a two-story building, Reuven lives on the ground floor, and Shimon on the first floor. Shimon built an additional floor above the first floor and therefore moved Reuven's hot water boiler to the roof of the second floor and also extended Reuven's hot water pipe, which runs along the exterior wall of the building, to the roof. Now there is a solar boiler on the roof for Reuven, from which hot water descends through a pipe running inside the exterior wall of the first and second floors to his apartment. Over time, Shimon claims there is a leak from Reuven's pipe in the wall between the first and second floors. It should be noted that the leak is due to the connection of the pipe between the first and second floors made by Shimon (to extend it to the roof), and it is still under Shimon's responsibility who performed the pipe extension. Reuven, unaware that it was under Shimon's responsibility, called a plumber who installed a bypass pipe outside the building from the boiler into the wall of his house on the ground floor to have hot water, and so it remained for about a year and a half until Reuven sold his house. Yitzhak, who bought Reuven's house, wants to return to using the right to pass water through the pipe inside the wall (which remained intact and unused) because the external pipe is ugly and protruding. Shimon wants to prevent Yitzhak from passing water through the pipe because, according to him: 1. He has a precedent of usage in the exterior walls of the second and third floors and therefore does not want Yitzhak to pass water through the pipe. 2. Reuven, by installing and using the bypass pipe, showed that he waived his right of use, and this right can be waived without any transaction. The question: 1. Can Shimon prevent Yitzhak from using the pipe (from the mentioned claims) or does Yitzhak have the right to return and use the pipe that is already in the exterior wall without any use? It should be noted that Yitzhak is willing to repair the pipe if necessary at his own expense, provided he can use it. 2. Is there a rule of joint ownership in the exterior walls of the second and third floors that requires a different approach in terms of precedent? I would appreciate if you could address Shimon's 2 claims as well as the questions and bring evidence from the rulings (Choshen Mishpat, etc.) as much as possible. It is worth noting that the case is real, only the names have been changed for privacy reasons. Tizku le-Mitzvot!

Hello and Happy Hanukkah!

I am attaching the response from the rabbis of the Beit Hora'ah:

There are two questions here, one of which also involves the legal definition of ownership of the building's walls. It is customary that the interior part facing the apartment belongs to the apartment owner, but the exterior part is common property, such as Jerusalem stone which is a cladding for the building or any other cladding. In the case of a certain defect, such as a cracked cladding or a loosened stone, the repair is the responsibility of all the tenants, [section 52 of the Real Estate Law]. It seems that the division between the exterior and interior part is: the concrete casting and cladding are external, and the block, etc., is internal, so the pipes usually pass through the block which is the internal part belonging to the apartment owner.

However, logic suggests that in a shared building there is a certain obligation between the apartment owners, such as if a neighbor on the second floor needs to set up scaffolding in another tenant's yard, he can request payment or guarantees to restore the situation, but to completely prevent it, I think he cannot. We had a case where a neighbor's pipe that brings gas to the apartment broke, and he had two options: either to cut a new pipe in the wall to his house at the cost of tens of thousands of shekels or to pass a pipe in a place that relatively does not interfere through one of the yard owners, and we obliged the yard owner to allow him to do so, [I do not recall the source for this, but it is likely that there is an obligation between apartment owners to allow things to pass through their area, of course in moderation and proportion].

The second question, if we still had to reach the precedent of usage, and here when he stopped using the water pipe, perhaps it is considered that he waived the right of use. In the case of a window, for the closure of a window to be considered a waiver, 'breaking the jambs' is required, and here is the text of the Shulchan Aruch, section 154, article 12: 'But when the window owner himself closed his window, it is not considered a waiver for closing it for the need of the hour, unless he broke the jambs of the window, indicating that he does not want to open it anymore, or built a complete structure in front of it and the like'. According to this, here it is likely not considered that he broke the jambs. From the words of the Rema, it seems that it requires a clear intention to waive, and in this case, there is no evidence that he waived, and therefore he can return and use, although see in the notes of the Ra'ah, section 172, article 7, where he brings a dispute whether the absence of breaking the jambs is a clear intention that he will eventually use the window, and if there were no jambs at all initially, it is considered a waiver, or the absence of breaking the jambs is not a clear intention, and it is considered as a default waiver, and only when he clearly expressed an intention to waive, it is considered a waiver, even if we say to differentiate between the right of four cubits due to the door and the right of usage, see in section 156, article 7, the Rema brings a dispute regarding when the right of settlement ceases, and the Gra in his commentary there explains this dispute with the arguments written by the Ra'ah, therefore, also regarding the right of usage, it will depend on the same dispute whether a clear intention to waive is required or a default waiver is considered a waiver, in any case, from the words of the Rema in section 154, it seems the main opinion is that a clear intention to waive is required, and perhaps here everyone agrees, and this is not the place for discussion.

In conclusion, it seems more that in such a case, a precedent of usage is not required, and therefore it is not related to the waiver of the right of usage, and the neighbor can use the pipe, of course after he repairs it in the safest way, even if we were in doubt about this, perhaps it is indeed related to the precedent of usage, in that the neighbor made him another pipe because it was convenient for him at that time, there is no evidence that he waived his right to use the pipe.