Lesson # 340 • Opening Businesses in Residential Neighborhoods Reuven, a doctor, is an owner of an apartment in a multi-owned apartment building. Reuven desires to open a medical practice there. The same would apply no matter what type of practice he desires to operate there, a law office; an accountant’s office; a sales room; etc. The question involved is, if the office will attract many patients and increase traffic in the building, so when the current occupiers of the building want to use the elevator or are in the hall there are always patients coming and going. Our discussion assumes that this building was always operated as a residential building and apartments were always sold for residential purposes. There are, of course, many apartment complexes where space is originally designated for professional offices, this is not the case of which we speak. In halacha, any resident of the apartment building can go to Beth Din to obtain an injunction to prohibit Reuven from opening his practice. The same applies to residential complexes. Any owner who has an apartment that egresses into the same complex may go to Beth Din to obtain an injunction to prohibit Reuven from opening his business. The case of apartment complexes is more difficult that just one apartment building, since there is an opinion that only a tenant in the same apartment building can enjoin Reuven but not a member of another building in the complex. 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. 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 his office for three years, which is ordinarily enough time to obtain a presumption in halacha to maintain the status quo. A resident of the building or complex may not lease his apartment to a tenant who will attempt to open an office or business. This should hold true even if the owner cannot find any other lessee. However, any resident may sell his apartment, even though he knows that the purchaser wishes to open a business or office. During Talmudic times, and unfortunately during many subsequent periods of Jewish history, Jews were persecuted by their non-Jewish neighbors. Thus an apartment could not be sold to a non-Jew if it was thought that he would use the apartment for an office or business, since the Jews could not successfully obtain an injunction against the non-Jew in the secular courts, or most often were afraid to take the non-Jew to court. If a person does purchase an apartment in such apartment house or building complex, he may then have to face the risk of being enjoined from opening a business or office. The seller has no more interest in the apartment that he sold. A lessor, however, retains his interest in the apartment and must know the purpose for which the tenant is renting the apartment and thus the owner is an interested party. Assume that Reuven wishes 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 apartment complex. If Reuven was already engaged in manufacturing in his apartment, he has acquired a presumption to continue manufacturing there. In this respect manufacturing differs from a professional office or sales business. In the latter situations, the fact that Reuven has conducted them for some time did not permit him to acquire a presumption to continue their operation; he could even after many years be enjoined from such activities. However, in the case of manufacturing, once it has been acquiesced to, Reuven can no longer be enjoined. There are some businesses that entail accomplishing a commandment from G-d, such as teaching Oral Torah to students. In such instances, the inhabitants of the apartment building or complex cannot enjoin the teacher from teaching the students, although 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 is thus 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. Assume a situation where Shimon already operates an office, business or manufacturing facility in the apartment building or complex, then there are two opinions whether Reuven may open his office, business or manufacturing facility. According to one opinion, once there is such a business operated there by Shimon, Reuven cannot be enjoined from opening or operating such a business. The reason for excluding him if there is no such business there, it is to prevent the increase in traffic. Since such a business already exists, there is already a great amount of traffic and obviously the resident’s neighbors are used to it. Reuven’s business merely adds to the existing traffic. If the type of business that Reuven does will greatly increase the traffic, he can be enjoined. The fact that Reuven will now be competing with Shimon’s existing business does not play a role in the law, since each conducts his own business in his own apartment. If Reuven is from another city, he may be enjoined if he does not pay taxes to the city as does Shimon. For example, there may be an income tax that is payable where a person has his principal residence. It may be that Reuven has his principal residence in City A and he wants to open a business in City B. According to a second opinion, Shimon can obtain an injunction to prevent Reuven from opening up his competing business in the same apartment complex. This assumes that he will draw his clients, patients, and customers from the same apartment building or complex. If he is manufacturing and sells away from the apartment building or the complex, then Reuven cannot be enjoined. Reuven will be enjoined if he does not pay taxes in the city. If he pays taxes and owns or rents an apartment in the complex, he may enter upon the business. Merchants, who sell spices and other articles necessary for the Jewish housewife, cannot be enjoined from peddling their wares from house to house. This was one of the ten decrees that were enacted by Ezra in the fifth century b.c.e., when he returned from Babylon at the beginning of the period of the Second Temple. The spice merchant cannot, however, maintain a residence in the apartment building or complex without the consent of the other residents therein. If the spice merchant is a Torah scholar, he may maintain an apartment there. The subject matter of this lesson is more fully discussed in volume V chapter 157 A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website:www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat Matot-Masei Homepage]
|
