As the winter season continues to provide us – at least in Israel – with rains of blessing, this week we will discuss a question that occurs frequently on our dinonline.org website (and its din.org.il Hebrew equivalent): The matter of rain damages.
A question arises when one neighbor’s balcony serves as another neighbor’s roof, so that the lower neighbor’s ceiling will suffer rain damage when water gets through. Who is responsible for waterproofing the floor of the balcony?
As we will see, the answer to this question is not straightforward, and requires an analysis of the basic principles of neighborly relations in Torah civil law. Another important aspect is the place of local secular law in the equation.
We will, please G-d, clarify the issue in the present article.[1]
Who Needs to Prevent Damages?
The Gemara (Bava Metzia 117a) presents a dispute among Amoraim concerning who needs to prevent water damages between a loft and a house: “Two dwelled [in a house], one above and one below. The plaster [on the ceiling between the two] broke apart, so that when the one above washed with water, it dripped down, causing damage to the one below. Who is responsible for the repair? R. Chiya b. Abba said: The upper dweller. R. Elai said in the name of R. Chiya son of R. Yosi: The lower one.”
The Gemara proceeds to explains that this dispute is contingent on the dispute between Rabbi Yosi and the Sages (in the Mishnah) concerning the general issue of who has to prevent damages between neighbors. According to the Rabbis, the person inflicting the damage (the mazik) is responsible to prevent the damage, while according to Rabbi Yosi, the injured party (the nizak) must distance himself to avoid being damaged.
Rabbi Yosi agrees that in cases of direct damage – cases in which the damage results from the arrows of the mazik (giri diley) – the onus is upon the mazik to distance himself. However, the Gemara explains, in the case under consideration the damage is indirect, for the water is interrupted before flowing down to damage the neighbor’s ceiling.
This basic ruling is noted by the Shulchan Aruch (Choshen Mishpat 155:2): Where the water does not flow directly to the lower floor, the upper tenant may use water for washing or other purposes, even if the lower tenant will be damaged by this water.
As the Rivash notes (no. 517), this certainly applies to rainwater, which is not brought down by human action – in contrast to case of the Gemara, in which the upper tenant pours water on the floor – and therefore cannot be categorized as arrows of the mazik. This is ruled by the Rema (155:1).
Fixing the Common Roof / Floor
It thus seems that the basic responsibility to waterproof an open balcony will generally fall on the owner of the downstairs apartment (the injured party), and not on the owner of the upstairs apartment with the balcony. But does this apply even in a cases in which the floor of the balcony was damaged through its owner’s negligence? Can the upstairs landlord act however he wishes, knowing that in any case the damages are the problem of his downstairs neighbor?
This question brings us to an alternative approach for considering who is liable for the damage.
The Mishnah (Bava Metzia 116b) cites a dispute concerning who is responsible to fix the upper roof of a shared house that collapses – the upstairs apartment (the attic) or the lower one. In this case both the attic and the downstairs apartment need the repair since the rainwater damages both, by contrast with the case above (of the Gemara) in which only the lower apartment suffers damage.
According to a number of authorities (including Rashi and the Rif), the Mishnah refers to a case of a renter and a landlord, and not to a shared house (an apartment block).
The Rosh (10:2) explains that this must be the case, for in the case of two independent parties sharing a house, there is no doubt that fixing the roof of the top floor (the attic) falls on the attic owner alone. The reason for this is that, “they initially divided the house with this in mind: that the owner of the attic will fix his roof so that rainwater will not damage the lower floor. The owner of the lower floor, on the other hand, has no obligation to fix the floor of the attic.”
This seems to contradict the ruling of the Gemara, as noted above. The Maharashdam (no. 268) points out this difficulty, and writes that for this reason other authorities do not concur with the Rosh.
However, the Rema (164:1) notes the Rosh as a halachic ruling, and the Nesivos HaMishpat writes that the Shulchan Aruch concurs. This leaves the contradiction very much in place. (As noted above, the Rema in Siman 155 rules that the owner of the lower floor is responsible.)
The Negligence Issue
The Bach (155:7) raises this question, and suggests that the liability of the attic depends on the negligence of its owner in the creation of the water issue. If rainwater penetrated the attic roof because of the owner’s negligence – he left the attic roof broken – then the liability is his.
However, if he is not at fault for the rainwater, such as in case of a severe storm where some water is bound to get through, the owner of the lower apartment cannot claim the repair from the attic owner. If he so desires, he (the lower apartment) has to fix his own ceiling himself. This is true for old houses. It would not be true today, where we expect roofs to be waterproof even in severe storms.
The Case of the Attic
The Nesivos HaMishpat (164:2) suggests an alternative solution to the apparent contradiction. The Rosh (cited above) explains that when it comes to the floor of the attic, there is no doubt that the owner of the lower floor does not share in the expense of mending a leak.
The reason for this is that the owner of the lower floor prefers there to be no ceiling at all (and therefore no floor and no attic), which would mean that he would have nobody living above him. He therefore cannot be obligated to fix the floor.
The attic owner, moreover, is obligated to fix his roof, and cannot allow the rainwater to enter and damage the lower floor. It is as though it was agreed between the two that the owner of the attic is responsible for his roof, while the owner of the lower floor is not responsible for his own roof which is the attic floor.
Based on similar logic, the Nesivos explains the difference between the two rulings: In one case (the case of Siman 164), there is an implicitly agreed responsibility of the top floor for the lower floor: the roof of the attic must serve the needs of the lower floor, but the lower floor owner has no responsibility.
In the case of Siman 155, however, which is the rainwater case noted by the Rivash, there is no such implied agreement. The Rivash addresses a case in which one owner of a shared roof stops up the gutter, which causes a leakage of water. In this case there is no understood arrangement that covers the new circumstance, and therefore we revert to the general halacha whereby the nizak – the owner of the lower floor – must take care of the damage.
Balconies
Based on the rationale of the Rosh, it seems clear that with open balconies, where the lower floor does not rely on a higher roof, but rather requires the balcony to serve as protection from the rain, the owner of the lower floor will have to take responsibility for waterproofing the balcony. Because there is no roof atop the balcony, there is no implicit arrangement that the higher floor is responsible to keep out the rain.
According to the Bach as well, unless there was negligence of the balcony owner, responsibility for maintenance of the balcony will fall on the lower floor.
It should be pointed out, as noted by the Mishkan Shalom (R. Shalom Mordechai Segal, p. 137) in this case it stands to reason the owner of the balcony needs to share in the cost of waterproofing.
The reason for this is that if the balcony would be a ceiling or roof alone, and not a usable balcony, the owner of the lower floor could waterproof it effectively and cheaply by spreading a thick layer of tar atop the roof. More expensive means of waterproofing are required not for the sake of the lower apartment, but for the sake of the balcony, to ensure its proper use as a balcony. Therefore, the cost must be shared, and will not fall exclusively on the lower apartment.
The Custom Today
Although according to halachah the principal responsibility for waterproofing a balcony falls on the lower floor, in laws of neighborly relations we defer to the common custom, which people forming a neighborhood agree to abide by.
The Minchas Yitzchak (7:126) makes this explicit concerning waterproofing the roof of a building, explaining that this is a matter that depends on the norms that people generally adhere to, and that therefore we follow the common local custom. Therefore, in spite of the fact that, as noted before, the Gemoro rules that the owner of the upper apartment is exclusively responsible for maintenance of the roof, nowadays all the neighbors share in that responsibility. The reason is that this is the modern custom.
Similarly, the custom, anchored by law (in Israel and in most legal codes, for Israel, see the Law of Land Property (1969) 3(b) of Regulations) is that the owner of the balcony is responsible for waterproofing. This will therefore be the halachic norm, too (see Shut Chasam Sofer, Yoreh De’ah 6; Maharam Schick, Choshen Mishpat 19).
However, where damage was caused to the lower floor, it is not self-evident that the upper floor will be responsible, since this common law custom is less prevalent. A rabbinic authority should be consulted in order to resolve the situation.
See also Rabbi Aryeh Gross’s article on the subject in Alon HaMishpat 17 posted on the website.
