In the last lesson we discussed those things that were included in the sale of a house. We now speak of those things not included in the sale of a house. It is to be remembered that the contract of sale between the seller and buyer will be controlling. The laws as set down in this lesson apply when there are no contract provisions concerning these matters. Also in most countries there are laws and/or court decisions that will be controlling. But there are situations where the parties do not want to be bound by the laws of the land and wish to revert to halachah to define their rights and obligations.

When the seller sells a house without stating "and everything in it", accessory articles are not sold unless specifically included in the sale. This is true even if the seller has not reserved these things in selling the house. There are authorities who differ in this halachah and hold that if not reserved, the seller does not retain these things.

When the seller sells a house, the sale does not include an upper floor or attic that has a separate outside staircase providing access to it.

If Reuven sells his house to Shimon it does not include the veranda extensions around the house or the side chambers near the house. This is so even if the veranda or side chamber opens into the house. This holds true only if the veranda or side chamber is more than four cubits (seven feet) wide. However, if the side chamber or veranda is less than seven feet in width it is included in the sale of the house. This is so even if the veranda or side chamber does not open into the house, and this is the only entrance. Rooms behind the house that are at least four cubits wide are not included, nor are inner apartments or inner storage rooms, even if the house is sold by its boundaries: nor the roof if it has a parapet ten tefachim high (about 37 inches) and is at least four cubits wide, even if it is not covered: nor a pit, nor a cistern in the house.

Regarding air rights and subsurface rights, I have divided them into three categories. (Air right means the right to use the air above the property that is being sold.) Assume that Reuven owns three adjoining parcels of real estate. The one on the east, the middle parcel and the one on the west. Reuven sells the middle parcel to Shimon and Reuven still owns two parcels the one to the east of the parcel sold to Shimon and the one on the west of the parcel sold to Shimon. If Reuven retains the air rights over the middle parcel that he sold to Shimon, Reuven can build a bridge from the parcel on the west to the parcel on the east over the middle parcel. If Reuven retains the subsurface rights and oil is discovered on the middle parcel, Reuven has the ownership of the oil.

I have divided the sale of land with a house thereon into three types of sales depending upon the language of the deed. (1) The deed is silent as to air rights and subsurface rights; (2) the deed contains a limited description of the air above the house and the earth beneath the house; and (3) the deed contains a full description of conveying the airspace and the subsoil to the buyer. These three situations will now be discussed.

(1) Reuven sells a house to Shimon and the contract or deed is silent as to other rights. The rights to the air above the house and the rights to the earth beneath the house remain with and belong to the seller; the buyer acquires none of them. The seller has the right to build above the house sold to the buyer and to dig into the ground beneath the house so long as he can gain access from the side of the house and does not damage the house while doing such digging. The seller can build above the house by building on towers or pillars built alongside the house sold to the buyer. He may not use the house that he sold or the walls of any courtyard that was sold for support of his new structure. There is an opinion that the seller cannot excavate under the house that he sold to the buyer since there will almost always be a weakening of the house. With modern methods of shoring up structures, the seller could probably obtain permission from Beth Din to do such excavations. However, if the buyer excavates under his house and constructs any rooms, wells, or anything else, they belong to the seller.

If the seller sells to the buyer a courtyard with no structures therein without any specificity regarding air rights or sub- surface rights, then the buyer obtains all air rights since there is nothing on the land to state that this is what is conveyed to the buyer and all else is retained by the seller. Similarly, if the courtyard contains a house with land surrounding the house on all four sides, and the seller sells the courtyard and everything in it, the buyer obtains all the air rights in the courtyard.

(2) The deed states "ownership of the house and the depth of the house and the airspace above it." The buyer acquires only the house, the soil surface, and the air immediately above the house, not the structures beneath the surface of the soil nor the structures above the house, such as a sky bridge from one end of the property to the other end. He may build beneath the soil and the structures that he builds there belong to him. In the case of a ruin, the buyer may rebuild it to a normal height for structures in that community.

(3) The deed states "And I convey to you from the bottom of the deep to the height of the sky." The airspace above the house and the earth beneath the house are transferred to the buyer. With this type of description of the thing conveyed the buyer also acquires the wells, pits, cisterns, and storage areas beneath the ground together with the rights for construction and the mineral rights. He also obtains the roof and things above the roof up to the sky and may construct there without any claims on the part of the seller. In this case if the seller has a house adjoining the house that he sold and the sold house has in it a heating plant (or any other jointly used facility) for both houses, the buyer cannot prevent the seller from using the heat from the heating plant located in the buyer's house.

The subject matter of this lesson is more fully presented in Volume VI Chapters 214 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

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