I live in a neighborhood of private homes. A few years ago my neighbor decided to plant a garden on his property. Among other things he planted several trees. One of these trees has grown high and thick and as a result blocks the light from two of my windows that face his property. Do I have the right to force my neighbor to trim or uproot the tree or not, and if yes who has to pay for it?
The answer to your first question depends on the location of the branches that block your light. They might be in his property and they might be in your property. We will first discuss the situation where the branches are in your neighbor’s property.
The example the Gemoro brings of a neighbor who blocks his neighbor’s light, is where one neighbor wished to construct a wall. The Gemoro (Bava Basra 22B) rules that the neighbor must leave a distance of four amos (6-8 feet) between his wall and his neighbor’s window. The Rashbo (3, 156) was questioned by a neighbor who claimed that even though his neighbor distanced his wall by four amos it still blocked his light. He replied that four amos was fixed by Chazal as an absolute requirement and even though the light is diminished, nonetheless, one need not distance further. As a result of this ruling even if the wall is very high we can’t force its owner to distance his wall more than four amos. Therefore, if the branches are more than four amos from your window and are within your neighbor’s property, you have no claim.
It is interesting to note that there is an exception to the four amos rule, which is the subject of many of the sheilos that are discussed by Poskim. The Aguda (BB 7A) derives that a shul, which needs a lot of light, is entitled to more than four amos (but not more than eight amos) and this is ruled by the Shulchan Aruch (OC 150, 4) without any dispute. Therefore, one whose property borders a shul may not build within eight amos of any of a shul’s windows.
In case the branches are within four amos of your window, we must understand the rationale behind the halacha. We must understand by what right one neighbor can force his neighbor to distance his wall. Why don’t we say that a person can use his property in any way that he sees fit since he is the total owner of the property and therefore he should be allowed to build his wall wherever he wants on his property?
The reason one can force his neighbor to distance his wall is based on the principle of chazoko (See Sema 154, 38 in the name of Rashbo and Hago’os Maimoneyos (Shecheinim 9, 9) and others). The idea is that as soon as neighbor A opens a window that faces neighbor B’s property, A makes use of B’s property to allow light to enter his window. This is exactly the same as when A leans his ladder on B’s house. In both cases A is making use of B’s possessions and if B doesn’t actively object to the use for a sufficient time (at most three years) we assume that he permits the use. By virtue of A’s use of B’s property with B’s approval, A acquires (even though he did not pay for it) this right and B may not afterwards prevent A from continuing to exercise this right. This right is known as chezkas tashmishim.
We assume that you have established a chazoko to obtain light from his property. How one establishes a chazoko is another topic-see Ramo (153, 16) and the commentaries thereon, including Nesivos 13.
Thus, in halachic terms your claim is that since you have established a chazoko to get light from your neighbor’s property he is not allowed to prevent you by means of his tree from continuing to use his property in order to obtain light since you own this right. We should point out that the Poskim (e.g. Noda Biyehuda Orach Chaim, tinyono 16) rule that even if there are other sources of light, one can still prevent his neighbor from blocking the light entering his window. This is especially important nowadays so that even though we have electric lights, the halacha still applies. (Perhaps, there are grounds to not give more than four amos to a shul nowadays since they are lit by electricity and do not depend on windows for their light. However, Rav Eliashev (Kovetz Teshuvos vol. 3) did not raise this point when he ruled about someone who blocked a shul’s windows.)
Your question is not about a wall but about a tree. Exactly this question was asked to the Shevus Yakov (1, 159). He gives reasons both for and against comparing a tree to a wall. On the one hand, there are people who purposely plant trees close to their windows in order to have privacy and because they enjoy the smell and the pleasant air. Additionally, in the winter there are no leaves so light comes through and in the summer the sun is out and often the rays will come through. At the same time there are people who are more interested in the light. He therefore, says that one must judge each case on an individual basis, depending on how much light still manages to come through and whether trimming the branches suffices. Many later poskim cite this Shevus Yakov so this will answer another part of your question, namely, that when the branches are within four amos of your window, it depends on how much light is blocked.
We must note that the entire discussion until now is in case what is blocking your light is situated in your neighbor’s property so that your house and his tree are located close to the boundary line between your properties so that they are within four amos of each other. However, if your house is four amos away from the boundary line between the two properties and what is blocking the light from your windows are branches of his tree that enter your property then the halacha is very different.
The Mishna (Bava Basra 27B) writes that a neighbor does not have the right to cut off the branches of his neighbor’s tree that overhang his property. The Rid (BM 107A) says the reason is because the branches belong to the owner of the tree and as long as they don’t harm the owner of the field, the owner of the field may not cut them off. However, the property owner may cut off branches that damage him in any way. For example, the Mishna says that if the tree overhangs a field and the shade is harmful to the crop, the owner of the field may cut off the branches. Therefore, if what is dimming your light are branches that overhang your property there is no problem for you to trim them, even if they are more than four amos from your window, since they are harming you.
One of your questions is who has to cut off the branches, you or your neighbor. The general rule of the Gemara is that the victim of the damage in neighborly damages must deal with the problem. The reason is that neighborly damages are not damages per se. The type of damages that are discussed in Bava Kama such as shor, bor, eish are unequivocal damages of one party to another. However, neighborly damages are damages that result from conflicting interests. For example, in your situation, your neighbor is interested in growing a tree and you are interested in having light which are both valid goals. It is only that your interests, in this situation, conflict with each other. Neither you nor your neighbor wishes to damage the other. In this type of damage Chazal allowed the victim to prevent or undo the damage but it is he who must deal with the problem.
The main exception to this rule is known as gerei dilei-direct damages. For example, in the case discussed by the Shevus Yakov the neighbor planted a tall, thick tree, which immediately damaged his neighbor. That is why the Shevus Yakov considered the option of forcing the one who planted the tree to deal with the problem. However, in your case, your neighbor only planted a small tree which at the time it was planted did not darken your house. It is only now, years later, that the branches and leaves are darkening your house. The Gemoro (BB 25B) explicitly says that this is not classified as gerei dilei and the one who must deal with the problem is you, the victim.
In conclusion: If the branches are in your neighbor’s field and are more than four amos from your window you have no claim. If they are in his property but within four amos of your window it depends how much of the light is blocked out. If the branches that are disturbing overhang your property then you may cut them off. In any case you will have to absorb the cost if any.