Question
I live in Israel Baruch Hashem but my upstairs neighbor lives abroad most of the year and only spends summers in his apartment. He owns not only the upstairs apartment but also the roof above his apartment, which he bought from the builder with the hope of one day building another floor above his present apartment. Last winter rainwater began leaking through his apartment into my apartment. I informed him of the problem and asked him to repair his roof. However, he ignored my repeated requests and the problem only got worse and this year the rainwater damaged my walls and some furniture. I have two questions one: Can I force him to pay for the damages and, two: What can I do to force him to repair his roof and prevent further damage?
Answer
Before answering your question it is critical to note that in this situation, since the roof belongs entirely to your upstairs neighbor, unless it was explicitly agreed otherwise, it is incumbent upon him to maintain his roof to prevent rainwater from damaging his neighbors. The reason is because in order to register their apartments in the land registry (tabu) the owners of all the units in a condominium must file a set of bi-laws governing the conduct of the condominium. Unless they file a special set of rules there is a standard set of rules that applies by default, known as the takonon hamatsuy. Rule 3B of these bi-laws grants any tenant the right to force any other tenant to maintain his apartment in a manner that will not impinge on the use or value of his apartment. Since these are the rules that were adopted by the neighbors they are bound to adhere to the rules. Some dayanim base this responsibility upon (see for example Hayoshor Vehatov vol 8 page 20) custom, which is also correct, but that is not necessary since the bi-laws are binding even in the absence of any custom.
In either case what is critical for the ensuing discussion is the fact that your upstairs neighbor is not fulfilling his obligation to maintain his apartment properly. Thus, the original Torah law is not relevant to your case and even if according to the original Torah law your neighbor is not obligated to maintain the roof, nowadays, since the bi-laws are binding, even according to Torah law he is certainly obligated to do so.
Having determined that your neighbor is responsible to maintain his roof, we can now discuss whether under Torah law that makes him liable for damages that result from his failure to fulfill his obligation. A critical factor to consider in determining if your neighbor is liable for the damages that you suffered is that your neighbor did not do anything to damage you. He only caused damage by failing to fulfill his obligation.
It is important to note that your neighbor is certainly not liable for damages, if any, that you incurred before your neighbor became aware of the leak.
There are two classes of causative damages: those for which the one who damaged is liable, known as garmi, and those for which the one who damaged is not liable, known as gromo. Thus, we can rephrase your first question as: Are the damages that ensued from my neighbor’s failure to maintain his property classified as garmi or gromo?
In order to answer your question it is necessary to carefully study two sections of Gemoro which deal with damages that result from inaction, one where the Gemoro rules that inaction is considered garmi and one where, according to many authorities, it is considered gromo.
The case where inaction is considered garmi is where a section of the fence separating the properties of one neighbor who grew grain in his yard and the other who maintained a vineyard, fell. If the vineyard owner planted up to his property line he must build a fence and if there is no fence separating grain and a vineyard, the grain becomes forbidden to consume since there is a forbidden mixture, kilayim, in the vineyard. The Gemoro (BB 2A and BK 98B) rules that we warn the owner of the vineyard to repair the fence and if he fails to do so he is liable for the damages suffered by the owner of the grain.
The case where, according to many Rishonim, the Gemoro (BK 56A) rules that inaction is classified as gromo is where the refusal of two witnesses to testify on someone’s behalf caused him a loss of money. The Gemoro, as explained by many, rules that the witnesses are not liable in beis din but are liable in the heavenly court which implies that it is considered gromo and not garmi.
There are three approaches among the Rishonim. The approach of the Rama (BB 1, 18) is that inaction is considered garmi as we see from the Gemoro’s ruling in the case of the vineyard. He deduces from this that a neighbor is liable if his refusal to construct a wall between his and his neighbor’s property enabled thieves to steal from his neighbor. His opinion is cited by the Tur (CM 157).
The Tur also cites the Rosh who disagrees and maintains that one is not liable for damages that were the result of inaction. The Rosh explains that the reason the vineyard owner is liable if he refused to construct a fence is not due to his inaction by failing to repair the fence but because his vines damaged the neighbor by rendering the grain halachically unfit for consumption. Thus his liability does not stem from inaction but from the action of his property.
The third approach is advanced by the Ramban (Dino Degarmi). He maintains that one is generally liable for damages which ensue from his inaction. Only in cases where the requirement to act is similar to the requirement to testify is the one who damaged by inaction not liable. The reason for the exception of testimony is that the essence of the obligation to testify is that one must save the property of his fellow Jew. This requirement is essentially a corollary of the obligation to return a fellow Jew’s lost object. Since the basis for these obligations is the requirement to act kindly towards one’s fellow Jew they do not create liability, because one is not liable for the consequences of his failing to act kindly. However, since it may cost money to build a fence around a vineyard, the fact the he is required to construct a fence is viewed as a monetary obligation and, therefore, one who fails to repair his fence is liable monetarily for his inaction.
Thus we have established that there are three approaches to the question whether one is liable for damages that were caused by his inaction. Since maintaining one’s property is a requirement that entails an expenditure of money the Ramban and the Rama agree that your neighbor is liable for the damages you suffered due to his inaction. However, the Rosh disagrees since the water that caused the damage is not his property and many Rishonim follow his approach. Thus beis din will not force your neighbor to pay damages based on this alone.
It is important to note that the above disagreement only pertains to the power of beis din to force the owner of the roof to pay. The Rosh agrees that in the heavenly court (the din of the Shomayim) your neighbor is liable. This can be derived from the Gemoro we cited earlier. If two witnesses refuse to testify even though beis din cannot force them to pay for the damage they caused, nevertheless in the heavenly court they are liable.
This is important for two reasons. One because, as we wrote in a previous article, the fact that beis din cannot force the guilty to pay does not diminish his obligation to pay. Two is that when one signs an arbitration agreement empowering beis din to judge his case, he gives beis din the power to render decisions that are close to the law even if not the strict letter of the law. Rav Zalman Nechemia Goldberg wrote (Hayashar Vehatov 1, page 17) that this grants beis din the power in a case like this, even according to the Rosh, to require your neighbor to pay for the damages. Thus, if you take your neighbor to beis din they will most likely rule that your neighbor must pay.
We should note that there are dayanim who maintain that since it is customary (a custom based on secular rulings) to require the negligent owner to pay for the damages, this is Torah law as well. However, not all dayanim agree with this reason.
Your second question is whether you can force your neighbor to fix his roof. The first point to note is that the Gemoro (BB 22B) states unequivocally that it is forbidden to damage in a causative manner and according to many the prohibition is from the Torah. (The Rama on Gittin 52 says that one violates lo sonu. Yam Shel Shlomo (BK 10, 23) says that one violates the command to love your fellow Jew-ve’ohavto lereyacho komocho.) Second, based on a different ruling of the Gemoro (BK 114), many Rishonim (Rashbo, Ran) and the Shulchan Aruch (386, 3: 55, 1) rule that beis din ostracizes (niduy) one who causes damage until he accepts upon himself to prevent future damage and to pay for any damages that may result. If he agrees in order to avoid being ostracized, he will be bound to fix the roof and until that is done to pay for any damages. However nowadays beis din usually does not ostracize people
If he does not fix his roof you may ask beis din to allow you to take him to civil court. Beis din would probably permit this. The civil court will certainly obligate him to fix the leak as we noted, and it has the power to compel him to do so.
Also, you can fix the roof yourself and afterwards force him to reimburse you for the cost. The reason is because he is obligated to foot the bill and so if you do it yourself you can force him to reimburse you. This is similar to the Ramo’s ruling (YD 252, 12) that if one pays to redeem a person from captivity he can afterwards force the captive to reimburse him for the expense and it is similar to what we wrote previously (Parshas Vayero) about the person who paid for a snake trapper to catch his neighbor’s escaped snake.
Alternatively, you can ask your neighbor to fix the roof and if he says that he will only fix it if you agree to pay the cost, you can agree and later on refuse to pay. This is because the Gemara (Yevamos 106A) rules that one may act this way with someone who refuses to act properly. Since not fixing his roof is improper behavior, you may employ trickery to get your neighbor to cease acting improperly and to fix his roof.
In conclusion: There are means to both rectify the problem and also to recover the losses you suffered from your neighbor’s failure to repair his roof.
