I live on the ground floor of a condominium. The area adjacent to my apartment is my neighbor’s backyard and my windows overlook his yard. Recently, my neighbor placed an eight foot square by eight foot high plastic storage unit in his yard almost immediately to the left of my window. Its placement darkens my bedroom significantly since that is the side where light enters the bedroom since it is the south side and the wall of the building is on the right side. I should mention further that my husband suffers from dementia, though he is still somewhat functional, and he spends many hours of the day in this room. I should also note that my neighbor’s yard is very large and there are many places in his yard where he can place the unit without disturbing me. His only reason for placing it there is because it is closest to the door from which he enters the yard from his apartment. Do I have the right to force him to move his unit?
We will first study what the Gemara says about this type of situation and then we will see how that applies to your particular situation.
The Mishna (BB 22A) discusses exactly your type of situation, where a person had windows overlooking his neighbor’s yard, and rules that if the owner of the courtyard wishes to build a wall on his property in front of the window he must distance the wall at least four amos (6-7 feet) from the window. The Gemara (BB 22B) explains further that the reason for this distance is to prevent the wall from darkening the apartment and this is ruled by the Shulchan Aruch (CM 154, 22). The Shulchan Aruch further rules that if the owner of the courtyard wishes to build his wall not in front of the window but to the side of the window, like in your situation, he must leave at least one tefach (less than four inches) between the wall and the window. Thus, it would seem that your neighbor is within his right since he left four inches between the unit and your window.
However, we have to understand the basis for the right of the one who has a window to force his neighbor to distance a new wall from the window. It would seem that the owner of the yard should be able to do as he pleases in his yard since it belongs to him.
The truth is that this is correct. However, there are two bases upon which the owner of the window may prevent his neighbor from building a wall even on his own property. The first way is the way Rashi explains the Gemoro (22A): the owner of the window has a chezkas tashmishim, which means that by virtue of his use of his neighbor’s property he acquires the right to continue forever using his neighbor’s property, in the same manner. Many Rishonim – including the Rambam and this is the ruling of the Shulchan Aruch (CM 153, 1) – maintain that in order to continue using the property one does not need to have used the property for three years and one does not need to have a claim that he purchased the right to make use of his neighbor’s property. All he needs to do is to use the property for enough time for his neighbor to realize that he was using his property, in order for him to acquire the right to continue doing so.
In your situation, you have this reason but also an additional, and much more powerful, reason to claim the right to prevent your neighbor from building on a portion of his property. The reason is because both your apartment and your neighbor’s yard once belonged to the builder, and he divided up the property into units, one of which is your apartment and another is your neighbor’s apartment and his courtyard. Therefore, when you bought your apartment you acquired the right to a window from the builder, even if that entails preventing your neighbor from freely using his property. Similarly, you do not have the right to use your property in a manner that will prevent your neighbor from using his yard in the manner that it was sold to him.
Now that we understand the basis for your right to curb your neighbor’s use of his yard, we can investigate whether the distances given in the Gemara and Shulchan Aruch are universal.
The Gemara (BB 7A) describes a situation which, according to one explanation of Tosafos, is very similar to your situation. This explanation is ruled in CM 154, 27 and other places as we will see, and from it we can derive the underlying principle and apply it to your situation.
According to Tosafos, the Gemara discusses two brothers who divided their inheritance such that one brother received a garden and the other a building that had an open porch (with just three walls). One day the brother who inherited the garden constructed a wall in front of the open porch and the owner of the porch complained. The Gemara discusses whether the complaint was justified.
From the discussion of the Gemara one can derive the basic principle that whatever rights were included in the price that one paid, are his. However, one cannot prevent his neighbor from making minor changes that would not have affected the price he paid for whatever he acquired. In the case in the Gemara, Tosafos explains that if the wall significantly diminishes the light reaching the porch, the porch owner can force his brother to demolish his wall. However, if the porch still gets a lot of light, even if it is somewhat less than what it had previously, the porch owner cannot force his brother to remove the wall.
This principle is the basis for a ruling of the Aguda (a Rishon, commentary to BB 7A) that is ruled by the Shulchan Aruch (OC 150, 4) and has been applied many times. The Aguda rules that one may not build a wall, even if it is more than four amos away from a shul’s window, since a shul requires more light than an ordinary residential home. The windows of a shul are comparable to the porch of the Gemara and four amos do not suffice. (This was before the discovery of electricity.)
Based on the principle that we derived from the Gemara that you are entitled to all benefits that were included in the price paid for your apartment, we have to consider your situation. Since there is no fixed distance, a dayan has to use his judgment in deciding how much distance to grant a window and dayanim have different opinions on the matter. The reason he Gemara and Shulchan Aruch gave different amounts is because the situation in their times was different.
The opinion of the Mishkan Sholom (Appendix to Chapter 4) is that one should consult an architect and ask if they would design a building in the manner that the neighbor wishes. Whatever an architect would not design, the neighbor cannot do, since that definitely was included in the price paid for your apartment. This approach is somewhat difficult since even if it possible that one would design an apartment in the manner that your neighbor wishes to create, nonetheless your apartment was drastically different from that in the beginning and it would be strained to say that you didn’t pay for approximately what you originally had.
A second prominent dayan (Rav Silman) maintains that in most circumstances where one wishes to erect something that will block light from entering from the side, one must not block light that enters from within a 45 degree angle of the window. Applied to your situation, since your neighbor’s unit juts out eight feet, he would require your neighbor to leave at least eight feet between his unit and your window. He says that in some situations 45 degrees is insufficient, but that must be judged individually.
A third prominent dayan (author of the Seder Hadin) requires placing the unit in a manner that will not diminish the light by ten percent or more. This rationale is based the testimony of expert evaluators, who determined that diminishing that amount of light, in general, does not diminish the value of an apartment.
You mentioned your husband’s condition. It is true that the halacha does consider a person’s special individual needs as we see in the Gemara (BB 23A) that special consideration was afforded to Rav Yosef because he was unusually disturbed by his neighbor’s behavior and the Rivash (res 196) who ruled that a tenant could not bang in his apartment because the banging disturbed his neighbor who suffered from headaches. However, since your neighbor will have to move his unit anyway, this issue will probably be resolved as well.
In conclusion: You can force your neighbor to move his storage unit.