THE JERUSALEM INSTITUTE OF JEWISH LAW
Rabbi Emanuel Quint, Dean 

Lesson # 112 •Right to Light

In lesson 109 it was stated “In these lessons we shall be discussing three possible torts that Reuven threatens to do. (1) Reuven increasing traffic over courtyard A; (2) Reuven overviewing or possibly overviewing Shimon’s property; and (3) Reuven blocking out Shimon's light. 

We are now up to the third tort, Reuven blocking Shimon’s "right to light". In my books, I describe Shimon as having a presumption for light, which means a right for light to enter his premises from the outside, hence the name of this lesson “Right to Light”. This lesson describes how Shimon obtains the right to have an opening for light and that Reuven may not block the light from coming into that opening.

Many years ago when I was practicing law in New York, one of my clients purchased a building that he did not really need. He owned a 37 story building with one side facing the Hudson River and the rentals for those offices were high because of the view. His building was not the last building on the block. There was a small eight story building between his building and the West Side Highway next to the Hudson River. He overpaid quite a lot to buy the small building when its owner wanted to sell it. My client knew that if someone else would buy the small building he would tear it down and build a high rise office building which would block the windows of my
client’s building and all his tenants would lose their view as well as outside light. In New York there is no prescriptive right for light. That is, no matter how long my client’s tenants were in the building the party next door could block their windows. I’ve been told by some of my students in the kollel who practiced law in England, that in England one can obtain the right for light and that the person who would have bought the smaller building next to my client's building could not build another building right next to my client’s building and block the windows of my client’s building. 

Shimon may acquire a right for light in several ways. He may make his window opening before Reuven uses his land that is contiguous to Shimon's land. Thus, when Shimon makes his window opening, there is no overviewing onto Reuven's land. (See last week’s lesson.) Or Shimon may open his window with the permission of and agreement of Reuven, express or implied; (an implied agreement might arise if Reuven helps Shimon make his opening). Or Shimon makes his opening (which may, or may not overview Reuven's property) and Reuven does not protest. There are varying opinions as to how much time the window has been there before Shimon obtains the right to maintain the window and have his right to light protected by the halachah.

The fact that Shimon has acquired a right to keep his opening facing Reuven does not give Shimon the right to overview Reuven's property. The right grants to Shimon only a right to maintain the opening, not to overview, which is still prohibited to him. Thus, Reuven can obtain an injunction to enjoin Shimon from overviewing Reuven's property through the opening to which Shimon acquired a right for light.

If Shimon has acquired a right to maintain his opening in his wall, then if the wall collapses and Shimon rebuilds the wall, he may maintain his opening for which he had previously acquired a right, and Reuven cannot block it up. When Shimon makes the opening he obtains the right to light even if the opening is small and even if it is close to the ground. There is an opinion that the window opening to qualify for the right to light must have a frame or the shape of a window. The standards of the community are controlling when questions arise as to whether it is a window opening. 
Once Shimon has a right to maintain his window, Reuven may not build any structure that will block such window. Shimon can obtain an order from Beth Din to compel Reuven not to block the opening that is letting in the light. 
Reuven must leave a space of seven feet between any structure he builds and Shimon's window. (I use the number seven feet because I use an amah to be 21 inches, so that four amoth is 84 inches or seven feet. There are those who have more precise measurements for an amah.) If Reuven leaves a space of seven feet and builds his structure, Shimon cannot complain if the structure built by Reuven does not permit light to enter into Shimon's window. Although Reuven may obstruct the light coming through Shimon's window by building his structure seven feet from Shimon's window, it must be built in such a way that Reuven will not be able to overview Shimon's window. 

A skylight is not considered a window for the purposes of this chapter. 
Until such time as Shimon has acquired his right for light, Reuven may take whatever legal action he can to prevent Shimon from obtaining the right to maintain his window opening or door opening whether or not it overviews Reuven's property. 

Let us assume Shimon has acquired a right to maintain his window opposite the property of Reuven, or according to some views even to maintain his window directly opposite the window of Reuven. If Reuven built a wall in front of such window belonging to Shimon, and Shimon did not immediately protest. Shimon has lost his right to light, and cannot later be heard to protest that he has not lost his right. Silence for even a moment, after seeing Reuven block out his window, is proof that Shimon has waived his rights to maintain the window for light. There is an opinion that if Shimon's right to maintain the window came not from mere use, but is supported by a deed or witnesses that he acquired the right to maintain the window from Reuven, Reuven will have to prove that he acquired from Shimon the right to block the window. Under this opinion, Shimon's silence when Reuven blocks the window will not be adequate to evidence an abandonment of his right to maintain the window. 

However, if Shimon blocks up his own window for which he acquired a right, then he does not lose the right to open it in the future, unless he removes the frame of the window, which would indicate that he has no intention to ever reopen the window. The same would hold true if Shimon helped Reuven build a wall in front of Shimon’s window. 

Assume that Shimon constructs a warehouse to store wines or oils or other goods that require ventilation. (With modern methods of ventilation in many parts of the world the following halachah may be academic.) The window and door openings face an empty abandoned field. Thereafter, Reuven acquires the empty field and plans to build a structure on the field. Shimon can demand that Reuven's structure be at such distance as Beth Din will determine will not interfere with the ventilation into Shimon's warehouse.
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. 

Questions to quint@inter.net.il