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Va’ero-Acquiring a Property by making Renovations

 

Question

I live immediately under the roof in a condominium in Israel. The roof was jointly owned by all the tenants in the condo. Since I wanted to expand my apartment by adding another floor, I approached the neighbors and asked them for permission to build. They replied that they would give me their rights to the roof in return for my accepting total responsibility for maintaining the roof and bearing all future related expenses. Since that was a small price to pay for the enormous benefit that I expected to reap, I immediately agreed. I began working by making a hole in the roof over my open balcony in order to build an internal staircase that would allow me to gain access to what was going to be the upper floor of my two story apartment. However, at that point I changed my mind and informed the neighbors of my decision because I noticed that the city began a crack-down on illegal construction and I was afraid I would be ordered to demolish my illegal second floor. In the recent rainfall, the roof began leaking in a place that is not related to my construction. The neighbors claim that it is exclusively my responsibility because that was our agreement and I cannot back-out. I understand their claim, but maintain that since I cancelled our agreement I don’t have to pay any more than anyone else. Was my cancellation effective?

Answer

We must analyze your question from the standpoint of the halacha in order to determine where your question is discussed.

As you stated in your question, you made a deal to acquire part of your neighbors’ property in return for assuming the responsibility to maintain the roof. Therefore, your agreement is a sales agreement. Thus your question is whether you can cancel your agreement by returning what you acquired and in return absolve yourself of the responsibility you assumed as payment for your acquisition.

This is another instance of the basic principle we mentioned in the previous article that in order to validate any agreement an act of kinyan must be performed. In the previous article, it was an employment agreement and the issue was whether an act of kinyan was performed by the employer since he was the one who “acquired” his employee. In this case, the issue is whether you performed an act of kinyan that would validate your acquisition of your neighbors’ rights to the roof. If you performed a kinyan you acquired the roof and you can’t renege on the agreement. However, if you did not perform any act of kinyan all you did was to negotiate an agreement but you never formally acquired the roof and thus you could cancel your agreement. Thus, your question comes down to whether you performed an act of kinyan by making that hole in the roof.

Since what you were attempting to acquire is a roof – an immovable property – we must study the laws of kinyan on immovable (real) property.

The Gemoro (Kiddushin 26A) lists three actions that are considered acts of kinyan on immovable property. One is paying the seller for the acquisition, known as kesef. The second is giving the purchaser a properly worded and executed contract known as shtar. The third is the performance by the customer of an act that exhibits ownership, known as chazoko. Since you did not pay any money and did not receive a formal contract, we must consider whether anything that you did qualifies as an act of chazoko and thus you thereby acquired the roof.

The Gemara (BB 53A) teaches that an act that improves a property qualifies as an act of chazoko on the property. An example given by the Gemoro is when one removes a stone in order to allow water to enter and irrigate a field. Similarly, the Gemara (BB 54A) writes that if one fills in holes in a field that he plans to plow, filling in the holes qualifies as an act of chazoko since making the field suitable for plowing is an improvement in the field. The Shulchan Aruch (192, 11) adds that similarly if one removes a heap of earth from a field it is an act of chazoko. The Nesivos (192, 3) adds that similarly, one who fills in a hole or flattens the ground in a house (built with a dirt floor) thereby acquires the house.

It is important to note that the act must be one that makes the property more suitable for the intended use of the property. Thus the same act can sometimes qualify and at other times be invalid, depending on the intended use of the property. For example, the Rama (192, 11) rules that digging a hole in a field is only valid if the owner intends to plow it afterwards, but if not it is invalid.

The Gemara (BB 53A) cites R. Nachman who ruled that if one erects a building on an ownerless piece of land but leaves an opening that allows anyone to enter the incomplete structure, and then a second person erects doors that seal the gap, the second person acquires the land and not the first. The Gemara gives as a reason that what the first person did was merely to “add bricks to an ownerless plot of land.” Since the building, as constructed by the first person, was not yet habitable, his construction does not qualify as an improvement of the land that would enable the builder to acquire the land, as he desired.

There is a major dispute among the Rishonim as to how this building was constructed. The Ri Migash understands that the house must have been built without a foundation because if it had a foundation the one who erected the house would have acquired the land when he dug the foundation since he dug a hole in the field in order to improve it by erecting a house thereon. This opinion is cited by many Rishonim in their commentaries including the Rashbo who explicitly concurs.

However, the Ramban and Rosh (BB 3, 61) and others (including Tosafos) maintain that even if the house was built with a foundation, the builder still failed to acquire the land because digging a foundation does not acquire the land for the digger. The Ramban explains that digging a foundation does not qualify since that hole is only temporary since the builder intends to fill it in with the foundation. The Rosh says the reason the foundation hole is not an act of chazoko is because it was only a step towards the ultimate improvement of the land, namely, erecting a house. It is only when one completes the intended improvement of the land that he performs an act of chazoko. (The Ketsos we will cite later maintains that the Rosh means essentially the same thing as the Ramban i.e. that the hole is only temporary.)

We should note that both opinions are cited by the Ramo (275, 21) who does not render a decision.

The Nesivos (printed in the Shulchan Aruch at the end of siman 192) was asked a question very similar to yours. A person bought a house with the intent to demolish it and replace it with a new house. Like you, he started working before he paid anything or signed a contract. He demolished two walls of the boiler room, cleared away the debris and then decided to cancel his agreement to buy the existing house.

The Nesivos ruled that according to both of the opinions concerning the foundation he can cancel the agreement because none of his actions qualify as an act of chazoko. He argues that according to the Rosh and Ramban the act of demolishing a part of a house cannot qualify as an act of chazoko because it only rendered the house less useful as a house. He says further that even the Ri Migash only rules that the act of digging in order to lay down a foundation qualifies as a kinyan when the digging is completed. Therefore, since the demolishing was not complete even the Ri Migash agrees that the purchaser did not acquire the house.

The Ketsos (his responsa is printed at the end of the Avnei Melluim res. 25 and in siman 192 of the Mechon Yerushalaim printing of the SA) rebuts the arguments of the Nesivos. He argues that even those (Rosh and Ramban) who maintain that digging a hole for a foundation does not qualify, agree that demolishing a wall qualifies. The reason is that when one digs a hole, the hole is only temporary until it is filled in with the foundation. However, when one demolishes in order to build, the demolishing is permanent. This is especially true in your situation since the hole you made in the roof was to remain and you intended to use the hole by building a stair case that would traverse the hole and allow you access to the upper floor. (The Nesivos (footnote 6) answered that demolishing cannot be better than constructing part of a house. However, he was rebutted by the Ketsos’ student the Mahariaz Anzil (footnote 10) who pointed out that when one removes a mound in a field in order to plow the action is a valid chazoko.) The Ketsos also disagrees with the argument of the Nesivos that even the Ri Migash agrees that one must complete digging the entire hole in order to qualify as an act of kinyan.

The Aruch Hashulchan (292, 13) agrees fully with the Ketsos and argues that renovating a house in order to acquire the house is entirely different from building a house with intent to acquire land. When one wishes to acquire a piece of land he must improve the land, which he did not accomplish by building an incomplete house. However when one wishes to acquire immovable property by reconstructing the house that sits on the land, he is immediately improving the property when he begins to renovate. This is much more clear in your situation where you were trying to acquire the roof and you began by making it much more usable by removing a section thereof.

In conclusion: The Nesivos maintains that you can back out of your agreement but the Ketsos and Aruch Hashulchan say that you cannot. Since the immediate issue is making you pay the current repair, they cannot force you to pay since you have the backing of the Nesivos and they are trying to make you pay out. However, if they already have your money you could not force them to return it.

 

 

 

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