THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 107 • Easements over a neighbor’s land

With this lesson we begin a discussion of a common situation in areas where homes are built fairly close one to the other. Most people in purchasing a home have a survey made to see that there are no projections from the neighbor’s property which the neighbor can maintain forever. If there is such a right by the neighbor to maintain such projection it may prevent the purchaser from fully utilizing the property he wishes to purchase whether at the present time or some time in the future. The purchaser may be prevented b the neighbor from building an extension to his house.

Reuven and Shimon are neighbors, their lands being contiguous and separated by an invisible boundary line. Reuven's house may be built up to the boundary line of Shimon's land or may be a few inches or meters back on Reuven's own land. Shimon's house is set back from the boundary line, or may, extend up to the boundary line. I have designated Reuven as the party who wishes to extend his projection over the airspace of the land of Shimon. Shimon is designated as the party over whose space or land Reuven wishes to project his projection. The term spar shall mean any projection such as a pipe or a beam or a spar or a board or a flagpole or clothesline or similar object. Or Reuven places leaders and gutterpipes on his roof that may project over Shimon's land and/or conduct rainwaters from his roof onto Shimon's land or house. Or Reuven may want to place a ladder against his building to make repairs on his house, which is built right up to or close to his boundary line with Shimon. May Reuven stand his ladder on Shimon's land, and can Reuven obtain a presumption for such ladder? 
If Reuven obtains a right for his projections over Shimon's land it is designated a presumption to maintain such projection over Shimon's land. 

There may be times when it is felt that there can hardly be any harm to Shimon, or perhaps even no harm in permitting his neighbor, Reuven to extend his spar or other projection onto his land. There is another aspect of this that is unique to halachah. The right of a landowner, in this case Shimon, not to have anyone, including his neighbors, looking onto his land.

This is the right of privacy. Interference with a person's privacy by looking onto his land is a tort, a private wrong. This tort is herein designated as the tort of overviewing. A homeowner (Reuven) is required to build a parapet around his roof that faces his neighbor's (Shimon's) land so that he, Reuven, may not stand on his roof and overview the neighbor's, Shimon’s, land. This is independent of the parapet, which every Jew is required to build around his roof for safety reasons as required by the Torah.

In essence there are two major reasons for not permitting Reuven the right to project a spar onto Shimon's airspace: (1) the tort of overviewing, and (2) the deprivation of Shimon to use his airspace when he wants to build thereon. In each situation the test will be whether Shimon is being put into a position where either one or perhaps both of the above reasons prevent Reuven from projecting over Shimon's land exist. If either or both reasons are present, Shimon can bring a timely lawsuit to prevent Reuven from continuing his actions. The failure to act timely may deprive Shimon of his rights and grant to Reuven a presumption that he can continue to maintain his projection over Shimon's land. 

Shimon may, by order of the Beth Din. prevent Reuven from extending his spar even minutely over the airspace of Shimon's land. Shimon may so prevent him because it interferes with Shimon's privacy when Reuven uses the spar. It is assumed that Reuven will use the spar extending over Shimon’s airspace to hang things thereon, and hen he does so he will almost instinctively gaze onto Shimon’s land to prevent from falling and there is thus an invasion of Shimon’s privacy. Shimon may prevent Reuven from extending the spar even over Reuven's own land even if Reuven states that he will not look over Shimon's land when he uses the spar. Even before the spar is removed Reuven may not use it, but Shimon may use it.

Furthermore, if Reuven's spar is permitted to remain over Shimon's airspace, Shimon may be prevented from building on his own land in the place where Reuven's spar intrudes. Thus, Reuven has violated Shimon's rights under both reasons stated above.

Just as Shimon can prevent Reuven from extending Reuven's spar over Shimon's airspace, Shimon can prevent Reuven from inserting a spar or even a small nail into Shimon's wall, which is at the edge of Shimon's boundary line. Reuven can, however, extend a spar just short of Shimon's wall as long as it is on his own property and there is no danger of overviewing. 

Since one of the reasons for enjoining Reuven from overhanging his spar over Shimon's airspace is that Reuven may overview Shimon's activities on his land, if Reuven has already been overviewing Shimon's land this tort and this reason would not be applicable. Thus, if Reuven already legally has windows opening toward Shimon's land and Reuven is already legally overviewing Shimon's land, then Reuven may extend his spar out of his building on his own land within his boundary even if its use would enable Reuven to overview Shimon's land. Since the spar is within Reuven's own land it cannot prevent Shimon from using his own airspace. Thus neither of the two reasons is being violated by Reuven. If Reuven sets his spar near his own window even if it is close to Shimon's land, Shimon could not object, since he could not use his land near the spar for to do so would be blocking Reuven's window, which he may not do.

Reuven has a tile roof that requires spars to be extended beyond the roof to keep the tiles in place and the spars and perhaps the eaves extend somewhat onto Shimon's airspace. Reuven has these eaves so that when the rainwater or snow falls from the sloped roof it will not fall against the wall of his own house and damage it. Reuven may keep his spars and eaves there without obtaining a presumption to continually maintain these spars and eaves. Whenever Shimon wants to build in the space occupied by these spars and eaves he may demand that Reuven remove the spars and eaves. Thus, in this situation neither reason is violated by Reuven. Neither eaves nor gutters nor leaders are used by the owner and thus there is no overviewing. And since Shimon can at any time demand that Reuven remove the eaves extending over Shimon's land, Shimon is not prevented from building where the eaves extend. Currently in most communities there are laws requiring a person Who builds a house to build it far enough from me boundary so that his spars and eaves do not extend beyond his boundary line onto his neighbor's land. 

The subject matter of this lesson is more fully discussed in Vol. V, Ch.153 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. 
Questions to quint@inter.net.il