THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 118 (part one) • Building a Dividing Wall

We come now to a new topic that will IYH continue for several lessons. The topic is the joint ownership of real property. What are the rights and obligations of the joint (or adjoining) owners? 

Reuven and Shimon jointly own a piece of real estate. They agree to divide the jointly owned real estate. Or, assume that Reuven wants to divide the jointly owned real estate and Shimon does not want to divide the real estate. If the real estate is large enough to be divided, that is each party will be left after the division with at least 49 square feet (four cubits squared), then either party may sue the other in Beth Din to obtain a judgment compelling the division of the real estate. Or Reuven and Shimon are neighbors of real estate bordering one other other, having purchased their parcels without ever having been joint owners of the real estate. In any of these situations either party may compel the other to agree to build a wall to divide their properties so that neither can look onto the property of the other. The party who wishes to have the wall built may sue the other party in Beth Din an obtain a judgment compelling the wall to be built. 

Reuven may demand the building of the wall although the parties have lived many years without a dividing wall. The fact that Reuven permitted Shimon to overlook his premises for any years does not constitute a waiver of his rights to now protect against overviewing. Reuven may assert this right at any time, even after many years. 

Even if the law or the custom of the community is to prohibit the demand for building such walls. Reuven will prevail in Beth Din. The reason is that laws contravene the right to privacy. 

Both Reuven and Shimon, each pays one-ha1f of the expense of the wall. Neither can refuse to pay his half of the construction of the wall. Each pays for one-half the expense even if his lot is smaller than the other's lot. Reuven’s lot is twice the size of Shimon’s lot. Reuven still has to pay for only one half of he wall. 

Reuven is wealthy and can afford to build the entire wall. Shimon states that he would like to pay for his half of the wall but does not have the funds to do so. Reuven can build the entire wall on his own premises and pay for the entire wall, and Shimon cannot object that he wants the wall to be a party wall so that he, Shimon, can use the wall for the support of beams. one-half of the wall. There is an opinion in one of the commentaries to the Shu1han Aruch that in such a case Ruven can insist that Shimon obtain the money to pay for his half of the wall or that Ruven can tender Shimon the value of Shimon’s entire lot and purchase the lot from Shimon. I totally disagree with this statement. It offends the entire concept of the halachah being made by God for men to live with. I do not believe that the halachah requires those who are unfortunate, to have to lose their property because they are too poor to pay for the wall when the neighbor who can pay for the wall can afford to do it. If Reuven wants to he may lend the money to Shimon with the understanding that if Shimon is still too poor to repay it then he will not have to repay. 

Or Reuven can build the wall on both sides of the boundary, but Shimon cannot use the wall until he pays his share of the construction costs. Whenever Reuven builds the entire wall at his own expense, he should protect himself and obtain a writing witnessed by two people that he has built the entire wall at his own expense and/or the entire wall is on his side of the boundary line. 

If they are both too poor to contribute to the building of the wall, then the wall will not be built but each party should give consideration to the other party when he is in his part of the courtyard so as not to overview him. The parties may receive money from the charity fund for the building of a wall of shrubs or hedges in dividing their yards. 

The type of wall should generally conform to the practice of the community. The width of the wall should be the customary width. The materials used should also follow the community practice even for reeds and shrubs, provided that one cannot see through such a wall. The practice should not be followed if the walls are so flimsy that one can see through it or it will not remain standing. If the community has no set customs in these matters, then if the parties cannot agree between themselves, Beth Din will decide according to the facts of the situation. 

If the custom of the community is to erect a less-stable wall and Reuven desires, at his own expense, to build a stronger wall that shall be entirely on his side of the boundary, Shimon can object that he wants to follow the community standard. There is also an opinion that Shimon cannot object. Similarly, if Reuven, contrary to community standards, which provide for a stronger wall, desires to build a less-strong wall at his sole expense, Shimon can object. 

If after some time the wall falls down, the space on the ground where the wall stood, and the materials from the fallen wall are divided between Reuven and Shimon. These laws holds true even if all of the material is now in the yard of one of them. 

When the halachah speaks of a wall, whether in building a new wall or a wall that had fallen down, it anticipates a wall seven feet high. After the wall falls down either Reuven or Shimon can insist that the wall be rebuilt to a height of seven feet. 

If before the wall fell down it was wider than the custom of the community, after it falls down Reuven can insist that the rebuilt wall be built according to community standards. Similarly if the old wall was higher than seven feet, Reuven can state that he does not want the rebuilt wall to be taller than seven feet.

Reuven and Shimon have the dividing wall between them with half of the wall on each one's property. Reuven wants to raise the height of the wall and Shimon does not agree. Reuven cannot compel Shimon to raise the wall, but Reuven may at his own expense raise the wall up to a height that does not interfere with Shimon's light or with Shimon's use of his side of the wall, nor will it endanger the wall. If damage is caused to the wall because of the additional weight, Reuven has to bear the expense. 

If Reuven, at his own expense, raised the wall to eight feet, he must bear the total expense of the extra foot. However, if Shimon thereafter raises the height to nine feet, Shimon must pay for this ninth foot and also pay for half of the cost of the eighth foot. If Shimon does anything to indicate that he wishes to take advantage of the extra work done by Reuven, he must pay for his share to the extent that he takes advantage. 

That which has been said regarding the height of the wall also applies to extending the length of the wall. 

The subject matter of this lesson is more fully discussed in Vol. V, Ch.157 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