Participation in the Cost of Building a Balcony Later Used

To the esteemed Rabbi, Gaon, Dayan Amram Frid, shlita, Question: Reuven lives on the first floor, and he has a large sukkah measuring 5*3 meters (this is not a hanging sukkah but on concrete pillars). This sukkah balcony was received from the contractor and existed from the beginning of the original building's construction. Shimon and other neighbors wanted to build rooms above it. (Reuven did not want to build). Reuven agreed on the condition that they build him a small balcony protruding outward. They indeed built him a hanging balcony. They also built a roof over his sukkah balcony, but without walls, and it remained a balcony. After two years, Reuven decided for several reasons that have changed since then that he wants to build walls and close his old balcony. Now the question is as follows: Shimon and the neighbors paid for the construction of the hanging balcony as follows: 25,000 for the hanging balcony (the new small sukkah). Another 25,000 because they needed to do waterproofing and concrete on the old balcony on the part that was always 15 meters, because during the construction of the hanging balcony, since they needed to insert iron rods also into the part of the old balcony, the waterproofing that was there was destroyed, and since the old balcony remained open without walls and rain entered, new waterproofing had to be done. *** Now after Reuven decided to build walls and close his old balcony, he had to destroy all the tiles they made and remove all the waterproofing because it rose 20 cm and created a step in the middle of the house. And now Reuven does not need all the waterproofing and concrete and iron mesh, etc., because everything is closed with walls and no rain enters. If Reuven had built then like them, the balcony would have cost him only 25,000 because he would not have needed waterproofing. Another fact, today prices have risen, and such a balcony, if Reuven were to build it alone today, would cost 50,000 shekels even without waterproofing. Explanation of claims: Reuven claims that he should pay Shimon and the neighbors only 25,000 shekels because it is known the ruling of the rabbis according to the Chazon Ish and others that if the construction has become more expensive, the beneficiary pays only the cost of construction and not the increase. And although they actually paid 50,000 shekels out of their pocket, but from the waterproofing he has no benefit, and if Reuven were to build today, he would not do waterproofing, In contrast, Shimon claims that in fact, in order for them to make the hanging balcony for Reuven, they had to also do waterproofing on the large balcony, and therefore the waterproofing of the large balcony is part of the construction of the small balcony because it is impossible to make the balcony without waterproofing for everything, and the balcony they made for Reuven's balcony. On the other hand, Reuven claims that all the waterproofing they did was done only for themselves so they could build a room, and from my perspective, I didn't want them to build anything, and I can't be obligated to pay only for the construction in the part from which I benefit (the hanging sukkah balcony), which saved me money if I had built alone, I would have had to pay. But if I had built, I would not have done waterproofing, and therefore I have no benefit from the waterproofing. Shimon and the neighbors claim that you can't hold the rope from both ends, and not pay for the waterproofing and not for the increase, because in fact, you, Reuven, also benefited from the construction of the balcony two years ago because thanks to this it cost you less, and if you were to build today, it would cost you 50,000 shekels even for the small balcony alone without waterproofing, and therefore in fact, we also spent 50,000 shekels out of pocket, and you actually benefited from 50,000 shekels. Reuven claims that these are two different things and they can't be mixed, for the part of the waterproofing from which I have no actual benefit now, it was not built for me, and I have no benefit from it, I don't have to pay a penny, and it is not at all in the discussion, on the contrary, I had to remove it so I could enjoy the place, and it is not at all related to me, and it is like the construction you built for yourselves above. I, Reuven, have to pay only for the part of the hanging balcony, and this part cost you 25,000, and for the increase, I don't have to pay. Reuven also claims that since he paid for the tiles at the time, and now he had to break them because their contractor built it elevated by 20 cm due to the need to do waterproofing and concrete, etc. And now he has no need, and it cost a lot of money to demolish the tiles and remove them. Reuven also claims that there was a large cost when workers worked for a whole week breaking with a jackhammer all the concrete floor that was added to the existing balcony called 'concrete' for waterproofing (a concrete slope that is poured on the existing floor so that there is a slope and the water flows out for waterproofing), and there was a huge cost also for removal and cranes, etc. And claims that it cost also about 25,000 shekels (it needs to be clarified, maybe even more) Therefore, Reuven claims that he should not pay the neighbors anything. That although he should pay them 25,000 shekels for the hanging balcony from which he did benefit, but in contrast, he had to pay the contractor this amount to remove all the construction of the waterproofing and concrete that they damaged him by raising the floor. In summary, there are three sides: A. Reuven should pay 50,000 shekels including the waterproofing that he eventually destroyed. As claimed by Shimon and the neighbors. B. Reuven should pay 25,000 shekels for the hanging balcony, this is the amount he would have had to pay if he had built alone at the time. But he should not pay for the waterproofing. C. Reuven should not pay anything, because he spent from his pocket to remove the waterproofing and concrete that the neighbors did so they could build above him. What is the ruling according to the Torah? I would appreciate it if the rabbi could answer this question that I was asked. With respect, Eliezer Halevi

Peace and blessings

Response from the rabbis of the Beit Hora'ah:

Since initially they did not have permission to build above him, as they were obligated to allow him a sukkah balcony. Therefore, his agreement for them to build above him in exchange for a hanging balcony is considered as selling the obligation they had towards him, and they paid by building the hanging balcony for him, and thus he is exempt from paying for the hanging balcony.

Regarding the benefit he received from the roofing when he is now building the original balcony. Since they were obligated at the time to perform waterproofing and everything necessary according to the data of that time (balcony), there is no obligation of the beneficiary towards them in all these details (even if he destroys them today according to his new needs).

The obligation of the beneficiary remains (as one who descends with permission into a field made for planting, as is the case with our courtyards, see Shulchan Aruch, Siman 370, Seif 7) that he has towards them as one who descends with permission from what he actually benefited from the roofing itself (the frame), without all the additional waterproofing that are not relevant for him now, since, as mentioned, they did not perform these actions for him 'as one who descends' but as their obligation not to cause damage into his domain due to their construction.

In summary: Exempt from paying for the hanging balcony. Obligated by the law of benefiting from using the frame they made (roof) now for closing the balcony - and as customary, the cost should be linked to the index to preserve the value of the expense at that time (without considering the increase).