THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 181 • Things Included in the Sale of a House

These lessons are in no manner or form intended to give legal advice. They are intended to acquaint the reader with the Torah law in these topics.
Throughout these lessons I have suggested that a person who is involved in a major commercial transaction should consult an attorney to help him. Thus when a person purchases a house, which for most people is their most expensive and lasting purchase, an attorney will, after consulting the purchaser, see to it that the contract of sale includes the items intended to be purchased with the house. Conversely, the seller's attorney will see to it that only those items that have been agreed upon to be part of the sale are included in the contract of sale.

Absent specific provisions included in the contract, local customs, legislation, and court decisions will help determine what is included in the sale of a house. Many of the laws of this lesson are nowadays theoretical, since agreements are entered into between the seller and the buyer when selling and buying real estate. But undoubtedly some instances may occur when these laws might be used. Or the parties may agree that there is a dispute between them in spite of the presence of lawyers and want to follow the halachah. (Our Beth Din recently had such a case.)

Assume that the parties do not have attorneys representing them, or if they do, the attorneys failed to adequately supervise the drafting of the clauses in the contract of sale of the house, or something unanticipated arises. Thereafter there is a disagreement between Reuven, the seller, and Shimon, the purchaser, as to what is included in the sale. The parties then come before Beth Din to determine what is included in the sale of the house.

Commencing with this lesson we shall IYH discuss similar laws regarding what is included in various types of sales absent specification.
In addition to the physical things included in the sale there is also the question of the rights of the parties to the airspace above the property sold and rights to minerals, water, building storage areas, and any other underground things. Absent specification, which of these rights belong to the buyer and which are reserved to the seller?

In lesson 178 (TT 562) there was discussed the selling of air rights separately from the ground beneath the air. In these lessons we discuss the sale of air rights together with the sale of ground and when they are retained by the seller. Many of the laws in these lessons deal with the residual relationship between the seller and the buyer. The parties - the seller and the purchaser - may agree between themselves as to what is included in a sale, and such agreement is binding on both parties. This holds true even if the local usage of terms of sale is in conflict with their agreement. Reuven sells his two story house to Shimon and they agree that the upper
floor is not part of the sale and is reserved for Reuven. Reuven may construct poles, spars, beams, or other things that project from his upper floor apartment onto the airspace outside his apartment, even if they extend into the airspace above the courtyard that Shimon bought from Reuven together with the house.

If the upper floor collapses or if Reuven wants to raze his apartment and rebuild it, in both events Reuven may rebuild it just as it was before the collapse or before his desire to rebuild it. The same applies to other structures in the building reserved to Reuven, such as wells, pits, cisterns, or storage areas.

If the parties fail to specify in their contract of sale what items are included in a sale, and if there is local usage, such local usage will govern.

In many communities there are recognized bodies or there may be legislation that will define the rights of the parties absent any specification.

Terms in contracts may be given certain construction as to their meaning by court decisions. All of these govern in the absence of any agreement between the parties.

There is authority that all of the following rules as to what is included in the sale and what is not included apply if the claims are made at the time of the sale. I would add that it includes the time that it takes for the buyer to return to the property and inspect it. If made thereafter and the seller admits the sale or the buyer has a deed to the house, everything accessory to the house is deemed to be included in the sale. That which is accessory may be determined by local usage, local laws, and court decisions.

There are certain things that are included in the sale of a house if nothing else is said. If one sells the house and everything in it, then the words of the parties will control and everything is sold, although some of the things would otherwise not be sold absent local custom or the specification to include them in the sale. This is so even without a statement that the seller does not reserve anything for himself. The attic in a house that does not have separate access is sold with the house even if it is not specifically so stated. If its access is by ladder through the house or if it is by a regular staircase it is the same as any upper floor and not included in the sale.
All attached parts of the house are included in the transfer of the house, such as doors, locks, stoves, ovens, door moldings, electrical supply systems, heating and air conditioning systems, television and telephone wires, and anything else that is considered by the local real estate people to be included in the sale.

In those cases where the buyer does not obtain those items above stated and the seller retains them, the seller does not have the right to gain access to them, unless he has specifically reserved such right. The buyer can demand that the seller pay for the right at a price to be negotiated to the satisfaction of the buyer.

If the seller retained the items by reservation rather than by the halachah, he need not obtain special permission to have access to the items that he reserved. For example, if the seller states to the buyer, "I sell this house to you but not the pit or the cistern," then he does not have to obtain permission from the buyer to have access to the pit or cistern.

IYH in the next lesson we shall discuss those thing that are not included in the sale of he house.

The subject matter of this lesson is more fully presented in Volume VI Chapters 214 of"A Restatement of Rabbinic Civil Law" byE. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. Questions to quint@inter.net.il