TAMA 38 and Pinui-Binui in Halachah [2]

In the previous article, background was given regarding the TAMA law and the types of its tracks. The main halachic problems created by this law stem from the significant additional leniency granted by it: the cancellation of the need for the consent of all residents for every addition or change in the building. That is, until this law was enacted, the rule in real-estate law was that rights in common property could not be harmed without the consent of all residents. But under this legislation, which advances the TAMA program, the consent of two-thirds of the property owners is sufficient for TAMA 38/1, while for TAMA 38/2 a majority of 80% of the residents is required, and the remaining residents can be compelled. The question arises whether, from a halachic standpoint as well, opposing neighbors can be compelled.

Is there a possibility of compelling residents to act according to this law?

What must be discussed is that sometimes there are neighbors who wish to sign an agreement with a developer to carry out this project, while other neighbors oppose any addition or change to the building. The question is: since this construction is carried out on an area that is jointly owned by all the residents, is it permissible according to Halachah for the interested residents to act according to this law, even though this results in taking land away from its owners?

At first glance, since it has been explained that the roof [where it was not attached by the contractor to a building right] and the other expansion rights are shared by all the neighbors, both by law and by custom, and none of them may build there except with the consent of all the neighbors, it follows that if some refuse and some wish to build and divide according to their shares, this is like any jointly owned property: if it is capable of division, each partner may compel the others to divide; but if it does not have the legal status of being divisible, he cannot compel division.

The possibility of division among partners

It is ruled in the Shulchan Aruch (Choshen Mishpat 171), based on Bava Batra, that the condition for dividing a jointly owned courtyard is that each person receive four cubits by four cubits, and that each have an entrance path to his portion without needing to pass through the other partner’s area. Therefore, if the shared roof area contains a sufficient measure for division for each person, each may compel the others under the law of division. But if it does not contain this measure, or if within such a measure they would not want each person to take that portion, division may not be compelled.

Can partners compel “gud o igud”?

In a case where the roof does not contain the measure required for division, and some residents wish to buy the roof for themselves from the other residents, while some neighbors object and want the ownership to remain shared and for everyone’s use, do they have the right to prevent this, or can those wishing to buy compel the neighbors under the law of “gud o igud”?

We find a dispute among the Rishonim as to whether partners can compel “gud o igud.” The Rosh (Bava Batra, chapter 1, §51) cites the opinion of the Ri Migash that “gud o igud” applies only to heirs or recipients of a gift; but if two people bought a house that does not contain enough for each of them, one cannot say “gud o igud,” because they purchased it knowing that they would be partners. Similarly, the Nimukei Yosef (Bava Batra 8a), in the name of the Ra’ah and Rabbeinu Yonah, writes that partners who entered into partnership in something that is not subject to division do not have the law of “gud o igud.”

The Shulchan Aruch and the Rema (Choshen Mishpat 171:1–9) rule in practice according to the Rambam and other Rishonim that the law of “gud o igud” applies even to partners who purchased property. The Shach (there, subsection 1) cites the view of the Rishonim who disagree and hold that there is no law of “gud o igud” for partners who purchased property.

The Minchat Pittim (171:1) cites the Kenesset HaGedolah that one may say “kim li” in accordance with the opinion of the Rishonim who say that we do not apply “gud o igud,” and he writes that these words are reasonable, since many hold this way, as is evident from the Shach. And it is clear that the partner who does not want division is considered to be in possession of his portion, for he does not wish to sell it. Furthermore, since the one who claims “gud o igud” gives the other the choice to buy and remove him by paying money, when that other refuses he is again called the one in possession. [There is great length on this matter in the Rishonim and Poskim, and this is not the place for it.]

“Gud o igud” when he wants to sell to others

All the above applies when a partner who demands that the roof be divided under the law of “gud o igud” wants it for himself. In such a case there is room to discuss, based on the above dispute among the Poskim, since some held that division cannot be done in this manner. But if he does not want to buy the roof to use it himself, but rather wants to sell it to someone else in order to receive a better payment for it, there is an additional reason why he may not be able to compel the other partners under the law of “gud o igud.” This follows the words of the Rosh (cited in the Tur, §171): if a house is not subject to division, and the son says that he wants to sell everything together so that he can sell his share for a higher price, and therefore says to the widow “gud o igud,” the Rosh holds that this is not “gud o igud,” because this law was stated only where each person is buying for his own use. But when he says, “Buy, for I will sell all the land,” the law of “gud o igud” does not apply. The Beit Yosef writes that this is not the opinion of the Rambam.

The Mechaber (Choshen Mishpat 171:6) copies the wording of the Rambam, and the Rema brings the opinion of the Rosh that one cannot say “gud o igud” when he has no money and must sell his share; that is, “gud o igud” applies only when he wishes to buy for himself, but not when he says that he will join with someone else and give the other half the money. Accordingly, at first glance, where some neighbors want to sell to a developer, the opposing neighbors can prevent the division by claiming “kim li” in accordance with the opinion of the Rosh and thereby block the “gud o igud.” This depends greatly on the laws of the claim of “kim li” [which we will not enter into in this article].

Is granting rights to a developer for TAMA construction considered selling rights to another?

However, I saw in the article of the Gaon Rabbi Avraham Drabmadiker (Otzar HaMishpat, vol. 1), where he discusses this matter at length and writes that it is possible to say that this entire discussion is not relevant here. One may say that this TAMA is not like selling the roof to others, but rather the use of the division of the common property for themselves — that is, the division of the airspace around the building, which is a jointly owned asset. Since, in exchange, the residents receive expansions to their apartments, this is considered using the common property for themselves. This is the efficient use of the common area; only the cheapest way to achieve this use is by selling part of the common property to the developer.

One can bring proof from the ruling of the Rema (there, 171:5), who rules that if they wish to divide a house that is subject to division but the house will suffer loss, one cannot compel his fellow so long as it appears to the beit din that the loss is more than one-fifth. It is also ruled there that if it is not subject to division but there is a wide wall, and if it is thinned it will become subject to division, then if it appears to the beit din that this does not damage the building, they compel one another to divide. If so, one may say that in this division of the common property there is no loss; rather, each resident improves his apartment.

Change and harm to the common area

Within the framework of TAMA, and especially TAMA 38/2, changes may occur in common areas, such as changing the location of a parking space or garden, changing the appearance of the entrance and passageways for the purpose of positioning the construction, and especially placing the elevator on common-area space. In these matters the majority can decide, as is explained at length in the book Va’ad Bayit BeHalachah [there is much to discuss here, and this is not the place]. However, when private-area rights are harmed, the majority does not have the power to compel, and we must now discuss what is considered harm to rights and what the majority has authority to decide.

Harm to private-area rights

In every expansion plan there is generally some harm to the existing apartments, but usually, when a person expands the apartment, the damage is offset by the benefit received. However, there are residents who oppose the plan because of actual damage that will be caused to their private right in their apartment, such as taking use of a private yard attached to the apartment, or of a balcony used for a sukkah, and especially where there is a need to demolish an extension already built by the opponent, or other disturbances to a normal apartment, such as blocking windows or air or sunlight, and the like. The question is whether a resident can prevent the TAMA plan because of harm to his rights in the expansion area. There are many issues here, and we will bring some of the main points.

A claim that he acquired a right through chazakat tashmishin

It is common for a neighbor to have made use of an area shared by all the neighbors and to have acquired rights by virtue of chazakat tashmishin, such as by building a storage room or enclosing a parking space in the common property. According to the Rambam, and as ruled in the Shulchan Aruch (Choshen Mishpat 153:2; 155:35), this is considered immediate waiver. The Taz (there) and the Gra (subsection 99) explain that the Rema ruled like the Rambam out of doubt, since the user is considered to be in possession. And although the Sema (153, subsection 32) distinguishes within the Rema’s view between one who acts in his own property and one who acts in his fellow’s property, nevertheless the Poskim write that the user can say “kim li” according to the view of the Rambam.

When the neighbors come to cancel these usage rights that derive from a chazakah based on silence constituting waiver, the neighbors can certainly cancel them for the purpose of the expansion, because the entire right of use was granted only as long as the courtyard stands for use. But when the courtyard’s designation changes and the place is designated for construction, the chazakah of use is canceled. Rights acquired by waiver last only until they decide to turn the area toward construction.

The source of the claim of chazakat tashmishin

The source of this matter is the Ri Migash (Bava Batra 57a), who is the source of the Rambam. He wrote that regarding chazakat tashmishin, if people are particular about such use, there is a chazakah; and at the end he wrote that regarding the land itself, it is not a chazakah unless it is accompanied by a claim, and today or tomorrow, if they divide the courtyard, they will divide it equally.

So too it is explicit in the Rivash (Responsa §248), who explains the view of the Rambam and the Rishonim and writes that whenever one made a partition in the courtyard, or established his use in the courtyard, and his fellow, who had the ability to protest, remained silent, the law is that he waived. But he did not transfer to him anything in the substance of the courtyard itself; rather, as long as the courtyard remains shared, he may make these uses in which he established himself and prevent his fellow from making them. But when they come to divide the courtyard, both are equal as at the beginning.

If so, the same applies to neighbors living together in a shared building. It is the way of neighbors to allow one another to make a sukkah or any other use in the building; even if they did so permanently and agreed to the neighbor, all of this concerns usage. But when they come to build, it is known that they did not waive for that.

This is especially so in a place where it is known that this is the custom regarding various uses: they allow a neighbor to use the courtyard until they decide to build.

A right of use based on a claim similar to chazakah of land

However, where he has a claim that the neighbors agreed to him and that he received from them a right of use, or that he paved a certain area for a sukkah, at first glance his law would be like chazakah of land: since he acquired this right from the neighbors, they cannot cancel it, and it cannot be changed and taken back for construction. Nevertheless, here too it seems there is room to say that he can be removed for the purpose of construction, since one can say that everything they agreed to was only for use while the courtyard stood for ordinary use, but when the courtyard stands for building, his use is canceled.

So too it is explained in the Bach (Responsa §7), that one must distinguish between selling him the actual place, in which case the owners cannot build in the specific place sold to him, and selling him the right to use the courtyard in a specific place without selling him the actual place. If the owners wish to build there, they may build, and the one holding the use cannot protest, for they granted him only the right to use the courtyard in the specific place as long as it is a courtyard.

If so, all the more so where they did not transfer it to him for money but merely gave him permission to use it: the law is that the use can be canceled, for now the place is designated for construction.

Summary

Where there are neighbors who oppose carrying out the TAMA project, the Poskim dispute whether division under the law of “gud o igud” is possible only among heirs or also among partners. There is also a dispute whether one can divide because he wishes to sell it to someone else. At first glance, one may say that in TAMA, where the property is sold to a developer, this is not considered selling to a stranger, but rather the form by which the property is improved. Various grounds were also brought for the claims of opponents due to harm to rights, or due to chazakat tashmishin or chazakah of land, and whether the building right under TAMA can uproot these rights.

With Hashem’s help, in the next article we will continue to bring further views of contemporary Poskim on this matter.