Lesson # 111 (part two) • Torts Against Neighbors In discussing the tort that neighbors may inflict one on the other, it was stated in Lesson 109 that there is the tort of “Reuven overviewing or possibly overviewing Shimon’s property”. A person may not look onto his neighbor’s property to see what he is doing there. The right of privacy is absolute. In fact one’s door may not face another person’s door. This raises problems when two or more neighbors live on one floor of an apartment building and both doors face a common vestibule such as the landing where the elevator stops. Reuven is waiting for an elevator or has just gotten off the elevator and Shimon opens his door. This affords Reuven an opportunity to look right into Shimon’s apartment. Generally, in chareidi occupied buildings there is an inside door within a few feet of the outside door, which inner door prevents outsiders from looking into the apartment. Most people don’t even think about invading the privacy of their neighbors. In fact, in the Torah when Balaam utters the phrase “How goodly are your tents, O Jacob, Your dwelling places, O Israel” he was describing the wonderful situation of how the Jews arranged their tents. Their entrances did not face one another so that there was no intrusion of privacy. Let's assume a situation that Reuven has an empty lot next door to Shimon’s house. Shimon wishes to build a window opening in the wall of his house that faces Reuven’s empty lot. This will enable Shimon to overview Reuven's empty field, which Reuven is not using. There is thus no current overviewing. Can Shimon make such an opening? There are two views. The first view cited by Rabbi Yosef Karo in Shulhan Aruch is that Reuven cannot protest the opening by pleading that he may in the future wish to use his field to build thereon or for some other purpose, and will then be damaged by Shimon's overviewing through the window Shimon is now building. According to this view, since Reuven may not prevent Shimon from building the opening, Shimon is not able to acquire a presumption to maintain the new opening. The result is that when Reuven does use his field, Reuven may insist that Shimon block up that new window so that Reuven should not be damaged by Shimon’s overviewing. Furthermore, Reuven may block the window with his own structure. An example given in the codes resulting from this first view is the following: Shimon has a house facing Reuven's lot, which has thereon Reuven's collapsed house. Since Reuven is not using his lot or collapsed house, Shimon builds a window in his house facing the collapsed house on Reuven's lot. Shimon is able to do so since Reuven is not using his lot and thus Reuven could not have protested Shimon building the window since Reuven suffers no current damage. Because Reuven cannot protest against Shimon, Shimon does not acquire a presumption (right) to maintain the new window in his house (unless he can prove through the testimony of witnesses that Shimon maintained that window before Reuven's house had collapsed). Rabbi Karo offers advice to Shimon. As soon as Reuven’s house collapses, Shimon should seek out two witnesses who should write an affidavit that Shimon maintained his window prior to the collapse of Reuven’s house The second view cited by Rabbi Karo in Shulhan Aruch is that Reuven can protest that he intends at some time in the future to use the empty field and thus prevent Shimon from building an opening that will cause overviewing to Reuven when he will, in the future, use the field. The explanation is that there is no reason why Reuven should have to litigate the question with Shimon when he is ready to use his field. Assume a situation where Shimon and Reuven have attics in their houses. Shimon wishes to build a window opening in his attic; Reuven has no window opening in his attic. If Shimon builds the first opening Reuven will not be able thereafter to build an opening because it will look right into Shimon's window. There are two opinions presented by Rabbi Karo in Shulhan Aruch: (1) Shimon must limit the size of his window openings so that Reuven will in the future be able to build a window opening without facing Shimon's opening; and (2) Shimon may build as large and as many openings as he desires, and Reuven cannot plead that in the future he may desire to build window openings in his attic. Assume the following situation: Shimon's window faces a wall that is between the land of Reuven and that of Shimon, the wall protecting against Shimon's overviewing Reuven's land. The wall collapsed so that Shimon can now overview Reuven's land. Reuven can require Shimon to block out the window. There is also a dissenting view that holds that since Shimon built his window legally (the wall at the time prevented Shimon from overviewing), he is not required to block up his windows. Assume that Shimon has on his land two houses side by side, house A contiguous to the land of Reuven, and house B alongside house A away from the land of Reuven. Shimon is currently legally able to overview Reuven's land from house A (Reuven had given Shimon permission to build the window) but not from house B, because his own house, house A is between house B and Reuven's land. Shimon's house A collapses so that now Shimon is able to overview Reuven's land from house B. Shimon does not have to block up his windows in house B since Reuven is now in no worse position than he was before house A collapsed. Assume that Reuven and Levi are co-owners of parcel #1. Shimon is their neighbor, owning parcel #2 adjoining the north side of parcel #1. Shimon, in his house on parcel #2, builds a window facing parcel #1, for which Reuven and/or Levi can bring a lawsuit to enjoin him, since Shimon is now guilty of overviewing parcel #1. Levi has gone overseas. Reuven agrees with Shimon, that when Levi and Reuven divide their parcel # 1 with each taking one-ha1f, if the one-ha1f of the parcel that Reuven receives is the northern half and thus adjacent to Shimon's parcel #2, that Reuven will permit Shimon to maintain the illegal window. This agreement between Reuven and Shimon is not binding on Reuven. The reason is that Reuven is currently not the sole owner of the northern half of parcel #1, and he has nothing that he solely owns with which to negotiate. This is similar to the situation where Reuven agrees with Shimon “When I purchase parcel #1 I hereby sell it to you.” This is not binding since Reuven may not sell that which he does not own. The subject matter of this lesson is more fully discussed in Vol. V, Ch.154 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. [The To'l'dot Homepage]
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