THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 116 (part one) • Opening Businesses in
Residential Neighborhoods

It seems that the topic of this week’s lesson (and next week lesson) is a very common occurrence in Jerusalem, and probably in many other cities in the free world, where people open business and professional practices and even manufacturing facilities in residential apartments. 

Lesson 113 began with the following observation: “Ordinarily, a person’s property is his castle, and he may do thereon that which he wants to do. But there may be some limits to what he can do if it interferes with his neighbor Shimon’s use of Shimon’s property.” In the last few lessons we discussed the laws of restricting a person from committing an act on his own property that will cause damage to his neighbor and/or neighbor's property. Examples in those lessons included damage caused by stoves, ovens, water damage, vibration damage, excavations, noxious odors and particles, and trees. There may also be other restrictions, such as building codes, zoning codes, fire department codes and other regulations that may restrict the owner or lessee of property to use it as he sees fit.

In one of the last lessons we discussed the tort of a person increasing the traffic over premises that he owns jointly with someone else, by increasing the number of inhabitants of his apartment or his house. This lesson also discusses the tort of increasing traffic, but in other ways.  

For background material it should be remembered, that in the time of the Talmud, in most residential communities, individual houses usually opened into a courtyard, and several courtyards opened into an alley; it was from the alley that one went into the public street. Thus a person who wanted to go from his house to the public street went from his house into a courtyard, and from the courtyard into an alley and then from the alley into the public street. The alley was closed from three sides, as was the courtyard. If the alley was opened at both ends it was designated as "an open-ended alley," and many of the laws dealing with restricting the traffic will not apply since outsiders in all events cross through the alley that is open at both ends. I have updated the terms and used the same laws to apply to multiple-storied dwellings or residential communities. The practice of a profession such as law, medicine, dentistry, accounting, engineering, and teaching is designated herein as the opening of "an office". The opening of a store is designated as the opening of "a retail business"; and the opening of a manufacturing facility is designated as such, the opening of "a manufacturing facility."

Many apartment houses are originally built with the purpose of having therein professional offices, or light manufacturing in parts of the building and stores in other parts of the building, usually on the street level or below the street level. The laws of this chapter will not apply to those situations. However, there are many residential neighborhoods and residential buildings in which professionals have purchased or rented residential  apartments, and basements and have converted these residential into businesses, commercial or professional or manufacturing premises. This has often been done to the detriment of the other residents of the apartment house or apartment complex.

The increase in traffic referred to here comes about because Reuven desires to open a business that will bring customers to his business. Reuven may desire to open a professional office, a manufacturing facility, or a retail sales business. The discussion herein assumes that the apartment house or apartment complex was built and sold to the occupants to be used for residences exclusively. The owner invites people, customers or clients or patients to his premises so that he may service them or sell them goods to earn money from those people. Of course the more successful he is the more traffic will increase by those coming to avail themselves of his services or products. 

Assume that there is no other doctor's office in the multi-tenanted building. Reuven, a doctor residing in the building, may be enjoined from opening a medical office that will increase the traffic into the building. Any tenant in the building may go to Beth Din to obtain an injunction to prohibit Reuven from opening his business. 

The same applies to opening a law practice, or the practice of dentistry, or accounting, or secular teaching, or any other profession or business that will bring clients or patients into the building. The teacher can be enjoined only if he is teaching secular subjects. He cannot be enjoined from teaching Torah-related subjects in his premises even if it will increase the traffic in the courtyard. 

Assume that there is no other doctor's office in the enclosed residential complex (as distinguished from the multi-tenanted building of the pior paragraph). According to one opinion, Reuven, a doctor residing in the enclosed residential complex, may be enjoined from opening a medical office that will increase the traffic into the complex. The same applies to opening a law practice, or the practice of dentistry, or accounting, or teaching, or any other profession or business that will bring clients or patients into the complex.

According to another opinion, Reuven cannot be enjoined by the members of the complex, although he can be enjoined by the members of his building.
The foregoing laws apply even if all but one of the residents of the building or complex agree to Reuven's request to open his office. If one resident objects, Reuven may be enjoined from opening his office. 

Reuven can be enjoined even if he has already opened his office. This is so even if Reuven has maintained the office for three years, which is ordinarily enough to obtain a presumption (right) to be able to continue one’s conduct. 

The foregoing laws also apply if Reuven wishes to open a store or sales office or other business. A resident of the building or the complex may not lease his apartment to a tenant who will attempt to open an office or business. This holds true even if the owner cannot find any other tenant. However, any resident may sell his apartment, even though he knows that the purchaser wishes to open a business or office.  

Reuven desires to open a manufacturing facility in his apartment. He may do light manufacturing that does not create noise or vibrations in his apartment if he will sell his product outside of the apartment building or outside the complex. If the manufacturing causes noise or vibrations, Reuven can be enjoined. If Reuven was already engaged in manufacturing in his apartment, he has acquired a presumption (right) to continue to manufacture there. However, if he wishes to increase the noise or vibration levels, he may not do so. If the neighbors are ill and it can be shown that they suffer from the noise and vibrations, he will have to cease even if he has already acquired a presumption (right) to continue.  

There are some professions that entail accomplishing a commandment from God, such as teaching Torah to students. In such instances the inhabitants of the apartment building or complex cannot enjoin the teacher from teaching students. This, in spite of the fact, that the students coming and going to the teacher increases the traffic in the building. The same applies to other commandments. Although the practice of medicine may save lives and thus is the performance of an important commandment, it need not be performed in this apartment. It can be done in a medical facility, or the doctor can make house calls.  

IYH, we shall continue this topic in the next lesson.  

The subject matter of this lesson is more fully discussed in Vol. V, Ch.156 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