The Right to Build a Sukkah in a Shared Apartment Building

In contracts drawn up when purchasing an apartment from a developer, the apartment plan usually marks an uncovered balcony, and there is also a certain indication that it is intended for a sukkah. Likewise, in lower apartments where the courtyard is attached to the apartment, there is usually no sukkah marking. It is necessary to discuss what rights the owners of these apartments have regarding use for a sukkah, so that the neighbors above cannot invalidate the sukkah.

The definition of a sukkah balcony purchased from a developer

One who buys an apartment with a balcony from a developer, when the plan marks it as uncovered with a sukkah designation, [I am not addressing in this article the case in which the neighbors build after purchasing their apartments from the developer; that is a subject for a separate article], the law is that an upstairs neighbor may not build above it, nor may he extend an air conditioner or grating more than three tefachim in a way that invalidates the sukkah. For the owner of the balcony has a servitude in the airspace above the balcony, that it remain clear up to the height of the sky, and this is defined as a chazakah of usage, as explained in the Gemara and in the Shulchan Aruch (beginning of siman 153).

The form of ownership in shared apartment buildings

It should be prefaced that today’s apartment buildings are a form of partnership intended to create private housing for a group of residents, where each person has an apartment in his private ownership, along with communal use of shared areas such as stairwells, etc.

Therefore it has been established that the lot and the building frame—that is, every part of the structure that serves all the residents, such as the frame, ceilings, walls, and the like, except for the internal parts of the apartments that serve only the owners of those apartments—are under the joint ownership of all the apartment owners in the building, each according to his relative share as determined at the time of purchase.

The private ownership of each resident in his apartment derives from his relative share in the ownership of the lot and the structure. In other words, every purchaser of an apartment in a shared building essentially purchases a share in the partnership ownership of the lot and the structure, and by virtue of this he receives a right and private ownership in one of the apartments, as determined between the parties in the partnership agreement signed between them or in the sale contract with the developer. At the same time, he also receives a right of use in those parts of the property that are intended for the joint use of all apartment owners. [It should be noted that I have seen apartment contracts that deny any right in the shared property, which is contrary to the Sale Law; the validity of such an agreement is a subject in itself].

The courtyards surrounding the building are included in the shared property and are intended for the customary use of all residents, except for a courtyard attached for the use of one of the building’s residents. In that case, the courtyard—from its floor up to the height of his apartment—is his private property and an inseparable part of his apartment [see at length in Mishkan Shalom (third edition, 5781), in the booklet on the parameters and laws of “chazakah of usage” in building a sukkah in a shared apartment building].

A courtyard that the developer attached to the apartment

I will note that there is a common mistake among owners of courtyards: since they bought the apartment and the developer wrote for them that the courtyard is attached to the apartment, they therefore think they can prevent construction above them, because they want sun there, or a sukkah, and the like. One must know that their right and ownership extend only up to the height of their apartment. Regarding the right and the manner in which they may build, and the right of the upper neighbors to build, I wrote at length in my article {"Regarding the construction of a synagogue with lightweight construction in the private courtyard of an apartment"}, and this is not the place for it.

The right to the airspace opposite the apartment

Aside from the shared rights of all apartment owners in the shared property, there are defined rights belonging to certain apartment owners in certain parts of the shared property. An example is the right that all apartment owners have in the airspace adjacent to the windows of apartments facing the area around the building, where this airspace is intended to create airflow and light for the apartments, and in certain cases also to create a field of view. These apartment owners have an acquired right in this airspace for its designated use, acquired for them by the developer. The definition of this right is a window chazakah, explained in the Gemara and in the Shulchan Aruch (Choshen Mishpat, siman 154), and it is included in chazakah of usage.

It is forbidden for the upper neighbor to place something that invalidates the sukkah balcony

In residential buildings of Torah-observant Jews, each apartment is assigned a place for building a sukkah. Usually a sukkah balcony is attached [and on the apartment plan it is written: uncovered balcony], and in the lower apartments a courtyard is attached in which the apartment owner has the right to build a valid sukkah. It is clear that the upper neighbor may not do anything opposite his airspace in a way that invalidates the lower neighbor’s sukkah [and regarding the size and location of the courtyard owner’s sukkah, that is a subject into which this article will not enter].

Whether making a sukkah in the shared courtyard is considered a chazakah of usage

Until now we have dealt with the rights that apartment owners have by virtue of their ownership and the rights of the neighbors. Now we must discuss the shared courtyard: if a person makes a sukkah there for several years, does he have a chazakah of usage?

In the Mishnah (Bava Batra 28a) it is explained that a person who uses, for three years, land known to belong to another, without a claim, does not acquire the land by use alone. Rather, a chazakah must be accompanied by a claim that he purchased it or that the land was given to him as a gift; then the fact that he possessed it for three years serves as proof that he purchased this land.

The Rishonim dispute the matter of chazakah of usage and chazakah of damages, such as where a neighbor has a chazakah to make a certain use or cause a certain damage in his fellow’s courtyard: does he too require a three-year chazakah and also a claim that he purchased or received it as a gift?

The view of the Rambam (Laws of Neighbors 8:1) is that for chazakah of usage there is no need either for a three-year chazakah or for a claim; rather, if the injured party saw and was silent, the user acquires the right immediately. However, the view of the Rashbam (Bava Batra 59a, s.v. haziz), and so it is ruled in the Tur (siman 153), is that a claim is required that he purchased it or that it was given to him as a gift; but silence alone, or a three-year chazakah without a claim, gives him no right of usage in the land. The Mechaber (there, se’if 2) ruled like the Rambam, and the Rema brought the opinion of the Tur.

In the Gemara (Bava Batra 6b), Ravina said: “This beam of a sukkah: up to thirty days it is not a chazakah; and if it is a sukkah of the mitzvah, up to seven days it is not a chazakah; after seven days it is a chazakah; and if he attached it with clay, it is a chazakah immediately.” The explanation of the Gemara is as follows: when there are two courtyards with a shared wall between them, and the owner of one courtyard leaned a beam on the wall intended to support the sechach, and he claims that he has a chazakah to use the wall, after thirty days his chazakah is valid.

It is explained that if this beam is for the mitzvah of sukkah, then up to seven days it is not a chazakah; but if the sukkah stood that way without protest for more than seven days, it is a chazakah. In Tosafot (s.v. ad) it is written that this does not necessarily mean seven days, since on Shemini Atzeret he cannot dismantle it. However, Tosafot Yeshanim in the name of the Rashbam explained that these seven days mean seven days after the festival.

The reason that a sukkah of the mitzvah does not create a chazakah within seven days is that a person gives his neighbor permission to make a sukkah without granting him permanent permission, and this use for Sukkot is a temporary need. Since chazakah is based on silence in a place where one would have been expected to protest, when partners are not particular, their silence proves nothing. According to this, it would seem that with a sukkah, where neighbors are not particular, there is no chazakah.

Whether building a sukkah in a courtyard attached to an apartment is considered a chazakah of usage

One must discuss a common case: an apartment has a courtyard attached to it, and the apartment owner makes a sukkah over his entire courtyard, or alternatively makes it in a specific place, and the upper neighbors wish to build above him, so that his sukkah will consequently be smaller, or he will need to make it elsewhere. Since he has done this for several years, does he have a chazakah?

The Rashba (Responsa, vol. 3, siman 156) discusses one who had a storage room in which there had initially been jugs of wine and oil, and in which he also intended to store wine and oil in the future. He wrote that since it is customary there for wine storehouses to have windows for air in order to cool the wine, and the prevention of air damages the wine, the law is that whoever came after the storehouse must distance himself. This is likewise ruled by the Rema (Choshen Mishpat, siman 154, se’if 25).

The Ketzot HaChoshen (subsection 9) found difficulty with the basic law of preventing air, for seemingly it resembles what is ruled in the Shulchan Aruch (Choshen Mishpat, siman 155, se’ifim 13–14) regarding prevention of “dusha,” which is a right a person has that people walk near his land and thereby strengthen it. The Rema wrote that this applies specifically where they acquired it from the king, but without that one cannot encumber another’s land for dusha [see Ketzot HaChoshen (there), who has difficulty with this encumbrance, and therefore it appears to him to rule like the Rema].

The right of the owner of a clothes-drying installation regarding sunlight

The Mahara Sasson (Responsa Torat Emet, siman 192, cited in the Shach, siman 154, subsection 26) wrote that from this law he learned that the same applies to a place designated for drying clothes, which needs sunrays and is called “ishtirador”: one must distance himself so that the sunrays will enter. Yet he is uncertain about this, because one could say that in a storehouse, the absence of air is considered actual damage, whereas with sunrays there is no actual damage, only that one will have to wait longer. But he concludes—and he brought this as well from another sage, the Maharshalach (vol. 1, siman 95)—that the conclusion is that one must distance himself from the wall. His primary proof is from the words of the Agudah (cited in siman 154, se’if 21), that since the windows of a synagogue require great light, one must distance himself more.

The Beit David (Responsa, Choshen Mishpat, siman 75) wrote that this applies only to a place specifically designated for drying clothes, where without sun the usage is nullified and has no reality at all. But a house designated for dwelling does not acquire ownership of sunrays, because if sunlight does not enter the house, the house is not nullified. This is unlike something designated for drying clothes: if he performed an action, such as placing pegs and the like, indicating that the place is designated for drying clothes, then it is relevant to say that he established a chazakah with respect to sunrays.

From the above-mentioned poskim it appears that one should discuss whether a chazakah of usage—where one uses something in his own domain, but needs light or sun, while in that light or sun itself he performs no action—is considered a chazakah of usage.

The view of contemporary dayanim regarding chazakah of usage in a courtyard

I saw in the article of HaGaon Rabbi Naftali Nussbaum shlita (Otzar HaMishpat, vol. 1) that when one of the neighbors built a sukkah in the partners’ courtyard, this is something about which neighbors are not ordinarily particular, so long as he did not make a change in the courtyard itself to create something permanent there. Therefore, one who builds a sukkah has no chazakah at all in this, and even after three years other neighbors can claim against him that they have the right to build their sukkah in this place, and they will need to reach an arrangement between them.

However, if that resident made something permanent in the place, showing that his intention is to use it there permanently, then certainly the partners are particular about such a thing; and if he did so and they did not protest, he acquired a chazakah to make a sukkah in that place immediately the first time, since he made something permanent.

This is also explained in the article of HaGaon Rabbi Shalom Mordechai Segal shlita (Otzar HaMishpat, vol. 1), that when one builds in the shared property and makes an unusual use of it, there is room to discuss that he may have a chazakah. But one who builds a sukkah in his private courtyard is making no use of the air above him, and therefore, seemingly, he has no chazakah.

And although there is a law that the sukkah must be beneath the open sky, nevertheless, one who builds a sukkah is not using the open sky. For there is no law that a sukkah must be under the open sky as a positive requirement; rather, if there is a house or another sukkah above it, the sukkah is invalidated. Seemingly, this use is weaker than a window chazakah and is not a chazakah. Consequently, the upstairs neighbor can argue that since the courtyard owner has the possibility of building a sukkah elsewhere in the courtyard, he cannot prevent him.

Practical recommendation

An original balcony purchased from the developer, if it is marked on the apartment plan as a sukkah, cannot have its sukkah invalidated by any neighbor in the building. But regarding a courtyard attached to an apartment, since usually a sukkah is not marked on the plan [for it is generally a large area], he must have the possibility of a sukkah [and the question of size is a subject in itself]. Even if he built a sukkah there for several years, according to contemporary dayanim this does not create a chazakah regarding the location and size of the sukkah [as explained in the article]. Therefore the recommendation is that when planning construction and wishing to plan balconies and sukkot, sometimes people build at the expense of the area of the original sukkah balcony and calculate on having a sukkah elsewhere, and in the end another neighbor wishes to build on that area. Therefore it is recommended that when planning construction, all neighbors who have rights in this building reach a clear and signed agreement, in accordance with all the rules of kinyan {which I discussed at length in previous articles}, regarding the location of the sukkot.

From the articles of “Torat HaMishpat”