THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 124 • Obligations of Joint Owners

In this chapter of Shulhan Aruch, Rabbi Yosef Karo discusses some of the rights and obligations of the owners of a two-story residential condominium. We shall designate the owners as Reuven and Shimon. They may have bought the two-floor residential building simultaneously or on different occasions, Reuven buying the lower story and Shimon purchasing the upper story. In some countries the building is known as a two story (floor) building, the terms floor and story being interchangeable. Or perhaps, they may be brothers who together inherited the two-story building and then divided their inheritance, Reuven taking the lower story and Shimon taking the upper story, or in some other manner. The owner of the lower story is designated as Reuven, and the owner of the upper story is designated as Shimon. This is not the same as the two of them buying the two story building as partners, each owning a one-half ownership of the entire building. Such an arrangement is discussed in laws dealing with partnerships. In this lesson, each exclusively owns his own apartment. There are common areas such as halls, that belong one half to each of them.

Sometimes the text will discuss the relationship of the parties as owner and tenant. In those situations Reuven is the owner of both stories and resides in the lower story. Reuven rents out the upper story to Shimon and Shimon is the tenant residing in the upper story. Unless otherwise noted all the situations concern two owners and not an owner and a tenant. 

The laws covered in this lesson deal mostly with partial or total destruction of the building. What are the obligations of the owners regarding each other? The owners may by agreement either made at the outset or at any time thereafter agree as to who makes which repairs. The laws of this lesson cover those situations where there is no such agreement. 

If any of the exterior walls of the building are damaged and require repair, that part of the damage that is below the top of the ceiling of the lower story is the responsibility of Reuven. If Reuven refuses to make such repairs, Shimon can sue him in Beth Din or use social pressure to make Reuven do so. The exterior wall from the top of the ceiling of the lower story to the top of the building is the responsibility of Shimon. If he refuses to make such repairs Reuven cannot compel him to do so, unless Reuven can demonstrate that the failure of Shimon to make such repairs will cause injury to Reuven and to his portion of the building. The reason that Shimon can compel Reuven and Reuven cannot compel Shimon is that the resident of the upper story is always afraid that if repairs are not made to the lower portion of the building, the building may collapse, and with it the upper story. However, there may be situations where the upper story of the building will collapse and the lower portion of he building will stand. 

As for the ceiling in the lower apartment separating the first story from the second story, when it requires repair, Reuven must make the repairs to the ceiling separating his lower apartment from Shimon's upper apartment, and Shimon must plaster the top of the ceiling, which is Shimon's floor. There is also a dissent that holds that Shimon is responsible for the entire floor, which includes Reuven's ceiling. 

Repairs to the roof must be made by Shimon. 

If the foundations of the building become weakened, both parties must contribute equally to its repairs.

Nowadays a great deal of the laws of this lesson are governed by local governmental laws and they may supersede many of the laws stated in this lesson. 

Assume that the building has fallen, due to external forces such as an earthquake, hurricane, typhoon, cyclone, or storm, or it has collapsed under its own weight from deterioration. Assume that both parties agree not to rebuild, or if they will rebuild they will use new materials. What is to be done with the materials from the fallen building? In many societies the material of the destroyed building of great value. Both Reuven and Shimon share proportionately in the whole and the broken material.

For example, if the height of the lower story is ten feet and the height of the upper story is eight feet, Reuven would receive ten-eighteenths of the external material and Shimon would receive eight-eighteenths of the external material. If the destruction of the building indicates whose material is more apt to be broken in the fall, then the other gets the whole material. If Reuven alleges that he recognizes which are his beams and bricks and that they are the unbroken ones, and if Shimon pleads that he does not know if it is so, then Reuven will take those unbroken ones he alleges that are his and Shimon will then take an equal amount of unbroken material. Reuven and Shimon will then share the balance of the material proportionately. However, if Shimon disputes Reuven and alleges that the whole material claimed by Reuven is really from Shimon's part of the building, they share proportionately in all of the material without either party receiving a preference as to which material to take first. All that is stated herein is subject to the laws and regulations of the community where the parties reside. Most governmental subdivisions have specific laws and regulations concerning construction of buildings. What is stated herein is subject to such laws. 

The building is totally destroyed. Shimon wishes to rebuild and Reuven refuses. Shimon may rebuild the lower portion of the building at his own expense and reside there. Reuven may at any time reimburse Shimon, at which time Shimon may add the upper floor to the building and then vacate the lower floor and move into the upper story. If Reuven decides to rebuild and Shimon decides not to rebuild his upper story then Shimon is not compelled to rebuild his upper story. Should he decide to rebuild his upper story, he will have to compensate Reuven for any inconvenience caused to Reuven during the construction of the upper story and for any damage caused to Reuven. 

If both agree not to rebuild, then Reuven is entitled to two-thirds of the land or sales price, and Shimon is entitled to one-third of the land or sales price. This arbitrary formula was arrived at by the Sages as follows: they determined that a building will remain standing longer if there is no upper story in the building. The longevity of the building is decreased by a third because of the upper story. If the anticipated life span of the building is thirty years, it is estimated it will stand only twenty years if an upper story is added. 

If they determine to sell the land, each has the right of first refusal as to the other's portion. For example. They determine to sell the entire parcel for $60, of which Reuven is to get $40 and Shimon $20. Shimon can offer to buy Reuven’s share for the same $40.

The local laws and local custom will govern the reconstruction of the building. Also, modern uses of strong material such as steel obviates some of the problems faced in reconstructing a structure. Subject to those laws and customs the following applies when the parties agree to rebuild the building. 

Reuven in planning his lower part of the building may not make any changes that will weaken the upper portion of the building. Thus, if before the exterior walls in the lower portion of the building were ten inches thick, they cannot now be six inches

thick because they may not be able to support the upper part of the external walls and the roof, and Shimon's interior walls. Conversely, when Reuven rebuilds his upper portion of the building, he should not plan to use materials that will increase the weight on the lower portion of the building. 

The subject matter of this lesson is more fully discussed in Vol. V, Ch.164 of A Restatement of Rabbinic Civil Law b```y E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. 

Questions to quint@inter.net.il