Lesson # 333 •Building a Dividing Wall I was asked recently by two brothers, Reuven and Shimon, who were visiting Israel, the following question. They had inherited from their father a parcel of land on Long Island. It was a small parcel and they agreed how to divide the land; surveyors placed stakes in the ground and they each knew the boundaries of the part owned by them. It was thought by them and they are still close friends besides being brothers, that each would build a small summer cottage and their families would no longer have to go to the Poconos for the summer. Reuven’s wife likes to sun bathe and wants a wall placed along the boundary line so that her neighbors, including her brother-in-law Shimon and his wife cannot look into the property when she sun bathes or entertains guests. Shimon did not see the necessity for such a wall, which they said would give them a closed in look. If Reuven wanted to build the entire wall on his own property and at his own cost and expense, it would probably not be a problem since in most instances halacha does not prohibit a person from building a fence or wall to give himself privacy. In this instance, Reuven wanted the wall to be built on the boundary line, half on his side of the boundary and half on Shimon’s side of the boundary. I suspected and was proved to be right, that the question of area to be given up was not the question. Reuven thought that if he could get Shimon to agree then Shimon would have to share the cost of the wall, one half each. They wanted to know what, if anything, halacha had to say in such situations. Shimon and his wife said that none of the other neighbors in the neighborhood had walls or even high fences, just some short hedges or short fences delineating the borders, and they did not want to have such a fence. (The question of a fence on the other side of the property was not an issue since the house on the side was very rarely used. I told them that Reuven could demand the building of the wall. I explained that the halacha favors the one who wants a wall of separation to be built. The lack of such a wall anywhere else on the block was not of any importance as regards these brothers. As to the type of wall it would generally follow the type used in the community, but since most of the community did not have walls of separation, there was no precedent as to the height, width or material from which to make the wall. The wall would have to be made of material that was opaque so that one could not see through it; it could not be of translucent glass etc. It could also not be so flimsy that it would fall with the first strong wind, and there are strong winds on Long Island. This all assumes that there are no building or zoning laws restricting the building of the wall or its type or height. I told them to consult with their lawyers and architects to see that it was legal to proceed. When it was ascertained that they could proceed, I told them to drive around the neighborhood and see where there were fences and how they were constructed. As there were so few such fences, the neighbors fences would not be a precedent. I told them to attempt to agree, otherwise Beth Din would have to decide and that they were far better off agreeing among themselves. I told them to look in the yellow pages for fence and garden contractors and consult with them to get ideas for the separation fence, or perhaps just tall hedges etc. After some time they agreed on a cyclone fence with green plastic to keep outsiders from seeing in. I also told them some of the halachot dealing with common fences. The fence would be built along the boundary line and each brother would give about three inches from his own yard to the common fence. If the fence would eventually fall down, for example as a result of a hurricane etc. the space under the fence would be divided up equally between them as would the scrap metal value of the fallen fence. This would hold true even if the fence would all fall into only one of their yards. Should the fence fall down either party could insist that the fence be rebuilt of the same materials and same height and each would contribute half of such cost. In halacha, a wall is presume to be four amot (about seven feet) in height. I was asked what if one of the parties wishes the height of the fence to be higher, could he have it raised in the future without the consent of the other brother? The party wishing to raise the height of the fence could not compel the other to pay for the raising of the height. The party wishing to raise the height can do so if he wishes to pay the entire expense himself and if in doing so does not thereby interfere with the light on the other’s property. Also it can endanger the existing fence if it cannot bear the additional weight of the addition to the fence. If in raising the height of the fence damage is caused to the fence, the party that raised the height would have to pay for the fence to be repaired. Assuming that Reuven was the first to want to raise the height but thereafter Shimon wanted to raise it still higher. Who bears the expenses involved? If Reuven, at his own expense raised the fence to eight feet, he must bear the total expense of the additional foot. However, if Shimon thereafter raised the height to nine feet, Shimon must pay for the ninth foot and also for one half of the expense of the eighth foot. Similarly, if Reuven, at his own cost and expense raises the wall to twelve feet and thereafter Shimon rests a crossbeam in the raised wall nine feet above the ground, which is two feet above the original wall, Shimon will have to pay for half of the expense of the two feet, between seven and nine feet. That which has been said regarding the height of the wall also applies to extending the length of the wall. 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 Shavuot Homepage]
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