THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 113 (part one) •Distancing the Tort

Ordinarily, a person’s property is his castle, and he may do thereon that which he wants to do. But there may be limits to what he can do if it interferes with his neighbor Shimon’s use of Shimon’s property. In this lesson, Reuven, is the person who causes the damage or injury, (who in law is sometimes called the “tortfeasor”, that is the one who causes the damage). Reuven does not directly come into contact with the victim, Shimon's property. Rather Reuven creates a situation on his own property that may possibly, currently or in the future, adversely affect the property of Shimon. The damages may be caused by heat, sound, vibrations, odors, water, or activities that undermine the foundations of structures or walls on Shimon's property, or make the use of Shimon's property less desirable.

If the torts described in this lesson cause damage while they are occurring, then Reuven is directly responsible for the damages caused. This situation is similar to Reuven shooting a cannon shell from his property that lands on Shimon’s property and causes damage. The fact that the shell left Reuven’s property does not absolve him from the responsibility for the damage caused by his shell. However, if the damages follow some time after the tort occurs and Reuven's conduct has ceased, then Reuven is not liable to Shimon for the damages caused. In this latter situation it is incumbent upon Shimon to protect his property from the tort, such as moving his installations from the proximity of Reuven's property where the nuisance is occurring. 

The first topic discussed in this lesson as it appears in Shulhan Aruch chapter 135 is the obligations of one condominium owner to the other condominium owner, whether they are residential owners or commercial owners. While many people think that the concept of condominiums is a modern-day concept, the Talmud makes many references to this type of ownership. The condominiums discussed at the outset of this lesson are two owners living one above the other. 

A great many of the relationships discussed in this lesson are governed in many communities by laws and regulations, promulgated by states or municipalities, planning commissions, zoning agencies, and the like: they are administered by agencies or departments, such as housing and building departments, environmental agencies, electrical and fire departments, sanitation departments, police departments, and the like.

Ordinarily, the secular laws must be complied with, unless they will interfere with a religious law. The laws of this lesson are here in the absence of local secular laws governing the relationship between Reuven and Shimon.

There are many communities where the deeds from the original founders of the community had restrictions prohibiting certain nuisances, such as the property being used for pigsties, tallow factories, distilleries, or other uses that give off noxious fumes. I remember from my law practice that in Crown Heights there were restrictive covenants in many deeds that prohibited transfer of the property to “Jews and Negroes” and that the property could not be used for tanneries or for raising pigs. The Supreme Court of the United States eventually struck down the restrictive covenants against selling to Jews and Negroes. The other restrictions were perfectly legal.
The distances given in this lesson are based on conditions that prevailed during the time that the Mishnah and Talmud were being redacted. Actual conditions in each community should govern such distances at the time that the questions arise. 

Reuven and Shimon each own an apartment in a two-floor condominium. Reuven owns the lower floor and Shimon owns the upper floor. Reuven may not maintain a stove or oven in his apartment unless the ceiling is at least seven feet (four cubits) above the top of the stove or oven. Similarly, Shimon must provide a floor of at least eleven inches of cement beneath his stove or oven. 

Modern types of stoves may give off less heat and require less than seven feet of air space between the top of the stove and the ceiling. Absent any regulations made by the secular rulers, each Jewish religious community must make its own rules and regulations regarding these situations. Rabbi Moshe Isserles in Choshen haMishpat chapter 155 paragraph 2 writes that “All nuisances for which no distances are given to prevent them from causing damage, then experts must provide the distances”.

Compliance with the rules set forth herein or with the rules of the secular authorities does not preclude liability if damage is caused by the stoves. Ovens, or other similar instrumentalities of Reuven or Shimon for reasons such as faulty wiring or faulty plumbing. The purpose of complying with the rules is to try to minimize the possibility of damage occurring, not to eliminate liability. 

There are many times that a building that was originally built for residential use is now being used for commercial purposes. This is a very common occurrence in Jerusalem. What are the rights, and obligations of the owners of these apartments? 

Assume that Shimon commences to use his upper floor for the storage of perishable items, such as grains, wines, and oils.

Reuven may not thereafter commence to use his lower floor as a bakery, a clothes-dying business, a stable, a granary, or for similar types of uses that give off odors that will rise and affect the products that Shimon is storing in the upper floor. If the use made of the lower floor will harm the items stored or manufactured in the upper floor, then Reuven will have to cease those uses of the lower floor. The same applies if Reuven uses machinery that causes movement or vibrations that will affect the products that Shimon is storing in the upper floor. If Shimon is in the midst of preparing his floor to store wheat or other fruit or produce, and while the preparations are going on Reuven hurriedly put a cattle stall into the lower floor, Shimon can obtain an injunction to prevent Reuven from operating his business there. However, until such an injunction is issued by Beth Din, Shimon cannot by himself prevent Reuven's activities. 

However, if Reuven commences to use his floor for any of the aforesaid or similar items before Shimon commences to use his upper floor for items that will be harmed by Reuven's continued use of his floor, it is Shimon who has to bear the consequences. Shimon cannot obtain a judgment from Beth Din enjoining Reuven to cease his activities, nor may he sue Reuven for damages to the products stored in the upper floor. 

If they both are about to commence their occupancy at the same time, Beth Din should attempt to resolve the matter in an equitable manner. 

If Shimon uses his upper floor for residential purposes before Reuven commenced his activities on the lower floor, there are opinions both ways as to whether Shimon can obtain an injunction to prohibit Reuven from using his lower floor for these activities. 

In the next lesson IYH we shall continue the discussion of Reuven causing acts in his property that will cause harm to Shimon in his property.

The subject matter of this lesson is more fully discussed in Vol. V, Ch.155 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