The Halachot of Pinui-Binui

Today many people undertake pinui-binui projects, in which the residents sign a contract with a developer, who purchases the plot of the building or of several buildings together, and the old buildings, which could be destroyed by earthquakes or missiles, are demolished.

If all the neighbors agree, then everything is excellent [provided that everything is agreed upon in advance, and care is taken that there are no clauses involving ribit — forbidden interest].

The issue arises when there are neighbors who object: may they be compelled to agree [and sometimes this is the apartment of an elderly person with Alzheimer’s who has a guardian].

The claims of the objectors

[A] The claim of increased residents, as explained in Bava Batra (59b).

And although regarding a stairwell there is discussion whether one can make a claim of increased residents, because perhaps it is like an alleyway, and some hold that in an alleyway there is no claim of increased residents, as explained in Choshen Mishpat (siman 156).

Nevertheless, in practice, the claim made by many that there is no claim of increased residents in a stairwell, and therefore one may add housing units, is because in any case there are many large families, and adding one more unit is not significant. But here, where the number of apartments is doubled and even more, there is a claim of increased residents.

[B] Sometimes it harms the character of the neighborhood when many people arrive, including types of people who previously did not live in the area; and it is explained in Choshen Mishpat (siman 161:5) that partners may prevent matters that the people of that place are not accustomed to doing in their courtyards.

[C] Objection by elderly people for whom the evacuation is disruptive: there is a source for this in Choshen Mishpat (siman 164:2 and siman 154:13), that it is a valid claim that it is difficult to live elsewhere, as cited below.

[D] Jealousy: although this is not a halachic claim, nevertheless, since the apartments are private property, they have the right to object; below it will be clarified whether this is indeed a claim.

[E] A desire to receive greater financial compensation: although this is not a halachic claim, nevertheless, since the apartments are private property, they have the right to object; below it will be clarified whether this is indeed a claim.

Today, according to civil law, the courts act against objectors/refusers in two ways:

[A] They leave the building as it is, and impose upon the refusers payment of all indirect losses and lost profits of the residents who agree; this amounts to enormous sums of millions of shekels.

[B] They reject the refusers’ claims, and the courts appoint an authorized representative who signs, in place of the objectors, all the forms needed by the developer, and they place in the representative’s hands guarantees and securities that the objector will receive an apartment like the one he had previously, in the place the contractor wants. Thus, his apartment is expropriated against his will, but he is given another apartment in its place.

Arguments for permitting and their rejection

There are several considerations because of which one might compel the minority, and even a beit din might be able, on account of these considerations, to compel the objecting minority to sign:

A. Dina de-malkhuta dina:

However, this is not a reason to permit it, since in Eretz Yisrael dina de-malkhuta dina does not apply, as explained by the Ran to Nedarim (28a), and likewise by the Rashba (there, in the name of Rabbi Eliezer of Metz). Their reason is that the basis of dina de-malkhuta dina is the king’s ownership of the land of the country; therefore, in Eretz Yisrael, where the land is not the king’s but belongs to all of Israel, dina de-malkhuta dina does not apply.

But according to the Rashbam (Bava Batra 54b), the reason for dina de-malkhuta dina is that the subjects of the kingdom willingly accept upon themselves the king’s laws and judgments; according to this, even in Eretz Yisrael dina de-malkhuta dina applies.

We also find the view of Rabbeinu Tam (cited in Kovetz Shitot Kamai, Nedarim 28) that with regard to a Jewish king, dina de-malkhuta dina was not said, and only with regard to a gentile king was dina de-malkhuta dina said.

There is also a discussion whether dina de-malkhuta dina is said regarding a wicked king, and the Rishonim dispute this in Sanhedrin (20b) regarding Achav.

However, it is explained in the responsa Chatam Sofer (Choshen Mishpat, siman 44) that in a matter that is for the benefit of the inhabitants of the country, dina de-malkhuta dina applies even in Eretz Yisrael according to everyone; the entire dispute whether dina de-malkhuta dina applies in the Land concerns only taxes taken from the residents against their will, but in matters for their benefit, everyone agrees that dina de-malkhuta dina applies.

Nevertheless, even if dina de-malkhuta dina applies in Eretz Yisrael, here one may say that dina de-malkhuta dina is not said:

The view of the Baal HaTerumot (sha’ar 46, part 8, siman 5) is that this was said only in a matter that benefits the king; and in the opinion of the Shulchan Aruch there are contradictions as to whether he rules this way (see siman 45:17; siman 66:6, 13, 26; siman 68; and siman 225:2). In responsa Avkat Rochel (siman 81), it is ruled that there must be benefit to the king himself; according to this, here, since there is no benefit to the king, there is no dina de-malkhuta dina.

However, the view of most Rishonim (Gittin 10b and Bava Batra 55a) regarding documents produced in gentile courts is that dina de-malkhuta dina applies to matters between one person and another, even in matters that are not for the king’s benefit.

But the Rema (siman 369:11) wrote that we say dina de-malkhuta dina only in a matter that benefits the king or that is for the welfare of the inhabitants of the country.

One must determine whether adding residents is for the benefit of the inhabitants. Some interpret it favorably: through this, more charedim will be able to live in the city, and this is a good thing; but it depends on which cities and how necessary it is. Others interpret it unfavorably: Shabbat elevators are needed, and sometimes when residents are added there are residents who do not fit the character of the neighborhood.

There is another claim: dina de-malkhuta applies only where there is a law that itself obligates. For example, if the law were that when there is a majority for pinui-binui the minority is obligated to evacuate, then perhaps this would be considered an obligating law.

But today there is no such law that one is obligated to evacuate and build,

rather the majority has the right to sue the minority for their opposition, and they can claim losses from the objectors, or the authorized representative appointed by the courts signs the documents in their place.

Thus, there is no law here that the minority is obligated to evacuate, and there is no expropriation by the authorities, but only the possibility to act on their behalf or to sue them for damages; therefore dina de-malkhuta dina is not relevant here.

B. A binding custom:

Since such is the custom, partners can compel the other partners according to the custom, if it is beneficial for the partners, as explained in Choshen Mishpat (siman 176).

However, in order for something to be called a custom, there must be a clear custom, and it appears that there is not yet a clear custom in this matter.

C. Compulsion by the majority of partners:

It is explained in Choshen Mishpat (siman 163) that partners in the affairs of the partnership are like the Great Beit Din, and therefore the majority of partners can compel the minority.

[It is explained there regarding a tax that they should seat all the homeowners who pay tax, and they should accept upon themselves that each one will state his opinion for the sake of Heaven and they will follow the majority; and if the minority refuses, the majority may compel them even through gentile courts and spend money for this, and they must pay their share. The source of the law is from the responsa of Maharam and Hagahot Maimoniyot.

The Gra (there) wrote that the source of the law is in the Gemara (Bava Batra 8b and Bava Kama 116b: donkey drivers may stipulate conditions among themselves), and it is ruled in Choshen Mishpat (siman 231) that the townspeople may stipulate regarding measures, etc., and impose sanctions for violating their fixed rules; meaning that the townspeople may stipulate among themselves that anyone who does not act according to the decision will be fined. The Gra (there) wrote that from this it is learned that all partners, in matters of their partnership, are like the Great Beit Din].

However, it seems that everything we find that they are considered like the Great Beit Din is not with regard to expropriating a person’s private property, for the partnership is only in the common areas; here the discussion concerns removing a person from his home.

Furthermore, everything we find that a majority is effective like the Great Beit Din is

only when everyone is present at the meeting and the majority decided; but if the objectors do not come to the meeting, this is not effective. However, the Pitchei Teshuvah (siman 163, se’if katan 1) wrote in the name of the Chatam Sofer that if a meeting was announced, it is considered as though everyone came.

Furthermore, it seems that not all partners in a building are considered like the Great Beit Din, but only a group of taxpayers or a group of craftsmen is considered a community in which the majority can compel the minority; especially since it is known that there are many under-the-table agreements and not all residents receive equally, and one cannot say that about this it was said that they are like the Great Beit Din, so that the majority can compel the minority.

D. The seven good men of the city:

Since there are concerns of earthquakes in buildings, and therefore there is a law, based on expert opinions, allowing such construction, this is considered like the seven good men of the city, who have the power to expropriate property from its owners.

But according to what was explained above regarding dina de-malkhuta dina, that it is not relevant here, the same reason applies here as well: the seven good men of the city did not expropriate the minority’s land; rather, as stated above, they only granted the right to sue the minority.

E. Registering houses as joint properties constitutes acceptance of condominium law:

Since the homes are registered with the authorities as joint properties and all condominium laws apply to them, it is considered as though they accepted upon themselves the laws of joint properties; and partners are permitted to accept upon themselves to adjudicate according to gentile laws if they do not go to adjudicate before them.

But this is not correct at all, because when the homes are registered as joint properties, the intention is not to accept all the laws of joint properties. The registration is done only so that there will be orderly records according to the law. Only what everyone has practiced in common areas, such as repairing the roof and pipes, must be done accordingly; in places where there is no custom, the whole building does not pay for the pipes and the like, but only that side. Only for the roof does everyone pay, because it can cause damage to the entire building.

However, it seems that in a building of secular Jews one may rely on the majority, since secular Jews come to live with the understanding that the law applies.

In summary:

In a building where the objectors are secular Jews, one may rely on the majority, since they live with the understanding that they will observe the law.

In a building entirely of Torah-and-mitzvah observant Jews, even in cases where there are no claims of increased residents, the character of the neighborhood, or the difficulty of moving, there is a right to object, since the home is private property. However, the neighbors may urge the objecting neighbors to sell, and this does not involve the prohibition of lo tachmod, but for the contractor there is a prohibition, as will be explained below.

May one urge a neighbor to agree?

One must discuss whether there is a prohibition of lo tachmod and of theft in compelling the objecting neighbors.

Now, it is explained in Bava Kama (62a) and Choshen Mishpat (siman 205) that if one was coerced and sold, his sale is valid; because due to his coercion he resolves to transfer ownership, since he receives compensation, and therefore there is no theft here.

But one must discuss whether perhaps this is called “he was coerced and acquired,” for the objector does not want to acquire, but to remain owner of his previous home; against his will he is given a home that will be his, and in exchange they take from him his previous home. This is like “he was coerced and acquired.” The Baal HaItur (cited in the Rashba, Kiddushin 2) and the Rashba dispute whether “he was coerced and acquired” is effective like “he was coerced and sold,” and in the Shulchan Aruch (Even HaEzer, siman 42:1) both opinions are cited without a ruling.

There is also discussion whether there is a prohibition of lo tachmod here, for the Rambam wrote (Hilchot Gezelah 1:9) that one who urges his fellow to sell his house or utensils and pressures him through friends violates lo tachmod. The Raavad (there) wrote that only if he did not say “I want” does one violate lo tachmod, but if he said “I want,” one does not violate lo tachmod. Here, since he receives another apartment in exchange for his apartment, it is considered as though he said “I want,” and one does not violate lo tachmod; this is also the view of Tosafot (in one answer, Bava Metzia 5b and Sanhedrin 25b).

However, from the Rambam’s opinion it appears that even if the seller said “I want,” the buyer violated lo tachmod; and so is the plain ruling of the Shulchan Aruch (Choshen Mishpat, siman 359:9), that one who forces his fellow to sell him his house violates the prohibition of lo tachmod, though he does not have the status of a thief. This implies that even if he said “I want,” one violates lo tachmod.

One may argue that there is no prohibition of lo tachmod here, because the prohibition of lo tachmod is when one wants his fellow’s object to pass to him; but here this is not the case. Rather, he wants a larger apartment for himself and for his fellow also to have an apartment, and therefore there is no lo tachmod.

There is also a rationale to discuss: since the one purchasing it is the developer, the neighbor is urging his neighbor to sell to someone else, and perhaps there is no lo tachmod in this, as explained in Ben Yehoyada (Kiddushin 59), that lo tachmod applies only when one covets for oneself, not when one covets for another.

There is also a rationale that since he is a partner with a partner, there is no lo tachmod, as we find regarding gud o igud; for this would seemingly be lo tachmod, and it is clear that there is no lo tachmod among partners.

Nevertheless, even though there is no prohibition of theft and no prohibition of lo tachmod, it is forbidden to force him to sign because of ona’at devarim — verbal oppression, as explained in Choshen Mishpat (siman 164:2), that he has the right to object to moving apartments [the language of the aforementioned Shulchan Aruch: “If the beams of the house became weakened and descended into the space of the house: if they reached within ten tefachim, he demolishes and rebuilds; but if they did not reach, the owner of the upper story may prevent him. And even if the homeowner says to him: I will rent you a place so that you may live there until I repair the ceiling; even if he uses it only for wood, we do not listen to him, for he says to him: I do not want to trouble myself from place to place so that you can repair your house”], and similarly in Choshen Mishpat (siman 154:13), and the source of the law is in Bava Batra (6b–7a)].

But if the developer is the one urging the objectors, the aforementioned rationales do not apply, and one must be concerned for lo tachmod, as explained: according to the Rambam and the Shulchan Aruch, even if he gives money, he violates lo tachmod. However, if these are matters clearly for the resident’s benefit, one may argue that there is no lo tachmod.

There is also a rationale to say that if he offers a truly worthwhile proposal, in such a way that there is almost no need to urge him, there is no prohibition.

Compelling residents through signing with the developer

Regarding signing the contract with the developer: if his signature is the final signature because of which the other residents can be compelled, it is forbidden to do so. The reason is that it is forbidden to cause damage by gerama — indirect causation [see Bava Batra 22b and Choshen Mishpat, siman 175:40].

A gentile developer

May one sign with a gentile developer: there is room to discuss that the prohibition of lo techanem applies only when one gives him an increase in land; but here the plot remains the same size, and they are only building on the existing parts that belong to all the partners, so there is no lo techanem.

One must also discuss whether there is a prohibition for a Jewish contractor to build an apartment for a gentile on a plot that already belongs to a gentile. Even if there is a prohibition, one must discuss that if he merely adds to the building for him, it may be permitted.

Matters to be careful about when signing a pinui-binui agreement

[A] Arbitration before a beit din or an arbitrator — not a civil court.

[B] Heter iska.

[C] The issue of refusing residents must be clarified.

[D] Work on Chol HaMoed.

[E] Shabbat elevators, sewage and water pumps approved for Shabbat with mehudar kashrut.

[F] Infrastructure for connection to a Shabbat generator.

[G] A place for a sukkah.

[H] There should be wording that all agreements were made with a kinyan before an important beit din, and from now, in a manner that contains no asmachta.

Places where there are those who do not observe Torah and mitzvot

[A] Two sinks.

[B] A Shabbat timer.

[C] A manual crank for electric shutters.

[D] Sensors in the building — they should be activated not by motion.

[E] The entrance door to the building — mechanical.

[F] Garden maintenance during Shemitah — according to Halacha.