Pinui-Binui in Halacha

Pinui-Binui is an additional law that allows tenants to be evacuated from their homes for the purpose of rebuilding the structure. This law is not connected to the reinforcement of old buildings [TAMA 38 — which was explained at length in previous articles]; rather, its purpose is to turn outdated neighborhoods into new neighborhoods. This law applies only to selected neighborhoods that the government has declared designated for Pinui-Binui. It grants additional building rights several times greater than what existed before the evacuation, thereby preparing the ground for developers and contractors to close Pinui-Binui deals with the residents.

There are two main tracks. There is the authorities track — in which the plan is initiated by the state, which declares a complex designated for Pinui-Binui; the local authority is responsible for advancing the plan until its preparation and approval by the planning institutions, and for completing the public areas in the plan. Afterward, responsibility for advancing the deal with the developer passes to the apartment owners. There is also the taxation track — in this track the plan is initiated by the apartment owners in the complex or by the developer, who apply to the state to declare the complex designated for evacuation and reconstruction. The declaration grants tax benefits, and the developer bears the cost of preparing the plan and advancing its approval in the planning committees. It must be discussed whether, according to Halacha, some of the residents can compel others to join this plan.

The idea of the law

The idea of the law began to take shape in Israeli governments in the 1960s, and its origin was in Europe and the United States. In 1965 the Knesset enacted the “Evacuation and Reconstruction of Rehabilitation Areas Law, 5725–1965,” behind which stood the need to renew old neighborhoods built with low construction quality during the great immigration of the 1950s. The law authorized the state to declare a rehabilitation area or a rehabilitation building, to plan its rehabilitation, and to evacuate the residents of the area in order to carry out reconstruction. Likewise, the state can grant developers and contractors excess building rights and tax benefits as incentives. It should be emphasized that beyond the building rights and the additional square meters that the residents receive, there is another benefit: one who buys or builds an apartment pays taxes for this, and the law grants an exemption from them, which today is a large sum of money [and this is a subject in its own right, and it is impossible to cover everything].

For a decade the government identified distressed neighborhoods and remnants of the maabarot that existed in the country, with the aim of evacuating them and building new neighborhoods on the vacated land. Only in 1998 was the law officially declared government policy, and in practice the first project under the law began in 2001 and was completed only 14 years later.

The difference between Pinui-Binui and TAMA 38

Carrying out the process is subject to a TABA zoning plan, and in order to allow the procedure, the complex must be declared by the state. This refers to an entire complex and must include at least 24 built housing units [unlike a TAMA 38/2 project, in which a single building with a smaller number of apartments can be demolished and rebuilt].

At the beginning of the law, the consent of 100% of the apartment owners was required, but this requirement delayed and thwarted many projects. Therefore, in 2006 the government reduced the required consent to 80%, as in TAMA 38/2.

Later in the process [in 2021], an amendment to the law was approved reducing the required majority for Pinui-Binui to two-thirds [66%]. It was also amended that apartment owners who committed building violations would not be included in the count of residents required for the majority. There are many additional conditions in the law, which were amended in various committees established by the government and the like, but it is impossible in this article to cover everything.

The rules of the law regarding those who refuse to sign

The initiators of the law assumed that residents would arise who would refuse such a deal, sometimes for proper reasons and sometimes for reasons that are not necessarily justified. Therefore, special regulations were enacted to overcome this matter. We will copy the details of the law and discuss whether there is permission to act according to these rules.

The law states that if the majority [the precise percentage was explained at the beginning of the article] of the apartment owners are interested in a Pinui-Binui deal, the remaining residents may be obligated to agree. However, the law does not obligate the remaining residents to vacate their apartments against their will; rather, the residents interested in carrying out the deal may sue in court and obligate the refusing residents in a tort claim for the financial damage caused to them by their refusal. Through this monetary obligation, they are in effect compelled to agree, similar to what is explained in the Gemara (Bava Metzia 101b; Shevuot 41a): “naktei be-kovsei de-lishbakei le-glima” — he seized him by his garment so that he would leave the cloak.

However, several limitations were stated in this regard, defined as refusal under reasonable circumstances; in these cases one may not obligate the refuser to pay damages. They are: 1. The Pinui-Binui deal is not economically worthwhile. 2. The refusing apartment owners were not offered proper alternative housing for the construction period. 3. The refusers were not offered appropriate securities for carrying out the Pinui-Binui deal. 4. There are special personal circumstances of the refusing apartment owner because of which carrying out the evacuation deal under the conditions agreed upon with the other apartment owners is unreasonable.

In any event, if the resident’s refusal does not meet one of the definitions mentioned above, the other residents may file a tort claim against the refuser and obligate him for the profit they would have gained from carrying out the transaction. The question is whether it is permitted to act this way according to Halacha.

The source regarding whether a neighbor is obligated to trouble himself by vacating an apartment because of his neighbor’s construction

The source of the matter is the Gemara in Bava Batra (6b): two brothers inherited their father’s house, and they divided it so that one lived in the upper story and the other in the lower story. After some time, the lower floor sank so that the floor of the upper story descended until the lower resident could not enter his home. The lower resident said to the upper one: “Come, let us demolish the house and rebuild it.” The upper resident answered the lower one: “I have an apartment to live in, and I am not interested in participating in the reconstruction.” The lower resident told the upper one that he would demolish the house and rebuild it at his own expense, even if he was not interested in participating in the costs.

But the upper resident rejected the proposal because he had no place to live during construction. The brother living below answered the upper one: “I will rent you a place at my expense to live in meanwhile.” The brother living above answered the lower one that he was not interested in troubling himself to move apartments, transfer his belongings, and return them after the construction.

Rav Chama ruled that the upper resident rightfully prevents the lower one from demolishing the house, and the lower one cannot trouble the upper one to leave his home, even if he is prepared to bear all the expenses. However, he limits the ruling to a case where the floor did not reach below ten tefachim, for then it is still possible to live under a ceiling that is ten tefachim high. But where the beams reached below ten tefachim, the lower one can say to him: “Below ten tefachim is my domain, and it is not pledged to the upper one.” Therefore, the fact that the upper one is using the lower one’s domain allows him to demolish the house against his will, and he is obligated to participate in all the expenses. This is also ruled in the Shulchan Aruch (Choshen Mishpat 164:2).

What emerges as halacha is that the very demand that a person vacate his home in order to rebuild it — when it does not have the status of a dilapidated house that is about to fall, or one that is dangerous from another aspect such as an earthquake and the like — has, from the strict law, no standing. Since this involves coercion to leave and to hand over wholly private property for purely economic needs, it would seem that one resident has no right to compel the others to agree to carrying out a Pinui-Binui deal.

Is there a prohibition for a resident to try to compel his neighbors?

However, I have seen that some discuss whether a resident is permitted on his own, without a beit din, to try to compel the other neighbors in some way, such as pressure or any other manner, to agree to this, or whether there is a prohibition in doing so.

The source of the matter is the Gemara (Bava Kamma 62a), and it is ruled in Shulchan Aruch (Choshen Mishpat 205), that if he says “I want,” the sale is completed, for because of his coercion he resolved to transfer ownership since he receives consideration. Likewise here, since in return he receives a great profit in a new apartment and the like, he consents after the fact, and there is no prohibition of theft here.

The dispute between Rambam and Raavad whether there is a prohibition of “lo tachmod” in such a case

However, Rambam wrote (Hilchot Gezelah 1:9) that anyone who covets his fellow’s servant, house, utensils, or anything that he can purchase from him, and pressures him through friends and importunes him until he takes it from him, even if he gave him much money, transgresses the negative commandment of “lo tachmod” — “You shall not covet.” Raavad wrote on this that this is only if he did not say “I want.” It is clear from his words that if he said “I want,” he does not transgress “lo tachmod.”

The Maggid Mishneh explains (s.v. kol) that if he said “I want,” his purchase is valid, and it is no worse than the case of “they suspended him and he sold,” where the sale is valid; and since so, there is no prohibition. Rambam’s view is that the purchase is valid even though he transgressed. That is, according to Raavad, if he said “I want,” he does not transgress the prohibition; while according to Rambam, even when the seller said “I want,” he transgresses the prohibition of “lo tachmod.”

This is also ruled in Shulchan Aruch (Choshen Mishpat 359:9), that one who compels his fellow to sell him his house and gives him its money is forbidden to do so, but does not have the status of a robber. In the Sma (subsection 14), he wrote that the prohibition is because of “lo tachmod,” as above. The plain language of Shulchan Aruch, which did not distinguish between whether he said “I want” or did not say so, implies that in all cases it is forbidden.

When one compels others to the program, does he, according to Rambam, transgress “lo tachmod”?

I saw in the article of the Gaon Rav Shimon Rusk (Kovetz HaYashar VeHaTov, vol. 12) that he discusses this and distinguishes that in the case of our question there is no prohibition of “lo tachmod.” The prohibition of “lo tachmod” is when one covets something belonging to another and takes actions so that it will pass to him; even if he pays for it, the law is that he transgresses the prohibition of “lo tachmod.” In contrast, in the case of our question he does not covet Ploni’s house at all, but merely seeks to exchange his apartment for a newer apartment; and if the neighbor agrees that he too will exchange his apartment for a new one, both can benefit from this. It follows that there is no coveting of another’s money here, but only an interest in improving the property.

However, it must be emphasized that this is specifically when the refuser has no correct and justified reason for his refusal. But if his refusal stems from the fact that moving from place to place and transferring belongings and the like is difficult for him, or from other justified reasons, it would seem forbidden to apply any means of pressure or coercion to bring him to agree to leave his home.

The prohibition against going to court with a tort claim

Even according to what was written above, that there is no prohibition in the coercion itself, it is certainly forbidden to go to court with a tort claim against the refuser because of the prohibition of going to secular courts, even in a case where he does not intend actually to obligate him and extract from him the money that will be awarded, but only that he allow him to build according to the law. For it is ruled in Shulchan Aruch (Choshen Mishpat 26) that it is forbidden to coerce through secular courts even to come to a Jewish court; all the more so it is forbidden to force him through secular courts to agree to something he is not obligated to agree to under Jewish law.

A threat by means of a lawyer’s letter

What remains to discuss, and this is a question I have been asked many times, is whether one may threaten through a letter from an attorney that he will sue in court for the damages caused by his refusal, or, in any other matter, whether it is proper to threaten to go to court. In Maharil Diskin (Piskei, siman 20, the second), he wrote that a letter calling upon someone to go to court, when he does nothing further, is considered only speech. It is clear from his words that as long as an actual proceeding has not begun, the process is not considered going to secular courts.

But it is obvious that the most proper form, in any case where there is a dispute between people or a company or any other matter in which they cannot manage on their own, is to arrange agreed arbitration, either before a single dayan or before an agreed beit din panel [this depends on each case as to what is recommended]. And if it is not possible to reach advance agreement on the place of adjudication, one may file a claim in beit din.

Summary

We have presented the idea of the Pinui-Binui law, as well as the conditions of the law and the rules of the law regarding those who refuse to sign. According to Halacha, if a neighbor refuses to join on the grounds that moving is difficult for him and the like, when this is a genuine claim, he cannot be compelled to join the program. Therefore it is forbidden to go to court in order for it to compel the refuser through payment, since according to Halacha he cannot be compelled. The practical recommendation when people wish to build according to the program is to come to terms with the neighbors and make an effort that it be worthwhile for them to agree.

From Torat HaMishpat

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