I live on the ground floor of a condominium. Below the ground floor is the building parking lot out of which there is an exit to the street below. I don’t have a car and if I want to go to the street below I use the stairs. Since I and my family don’t need the elevator I told the management company that I want to donate my share in the elevator to the neighbors and they should stop charging me for the upkeep of the elevator. Is my request justified?
Before we deal with your question we have to clarify your relationship with your neighbors. Since the building owns an elevator and it’s not private property, you and your neighbors are partners who jointly own the elevator. As a partner, you are being charged your share in the maintenance cost of elevator, which is what you wish to avoid.
There are two possible ways to achieve your goal. The first way is, as you mentioned, by simply withdrawing from the partnership. The second way is that perhaps, even if you can’t withdraw from your partnership, you don’t have to pay the maintenance cost since you don’t use the elevator. As far as you are concerned, they could stop using the elevator altogether, in which case there would not be any maintenance cost. Thus, this question is a specific instance of a general question: whether partners who don’t benefit from the partnership still have to pay their share.
The first question, whether a partner can unilaterally withdraw from a partnership in order to avoid a loss or an expense, is ruled by the Ramo (CM 176, 40). He rules, based on a responsum of the Rosh (89, 15), that in order to withdraw from a partnership one needs the consent of all the remaining partners. The reason is because by withdrawing, the withdrawing partner is harming the remaining partners and no one, even the majority, may harm someone. Since, in your situation if you withdraw you will cause your neighbor’s share in the maintenance fees to increase; you require the agreement of all of your fellow partner-owners in order to withdraw. If they agree you have achieved your goal.
If you can’t get all of the neighbors to acquiesce to your request, you will have to try the second approach which is to be freed from paying because you don’t benefit from the elevator. This question is also found in other contexts. In fact it is found in two contexts. Since the rulings seem to contradict each other we will have to understand the difference between them and see which situation is analogous to your situation.
The Mahari Mintz (responsa 7), whose ruling is cited by the Ramo (CM 163, 3), was asked by a community that needed to build a mikvah. Some of the older people in the community did not want to pay their share in the cost because their wives no longer required a mikvah. Basing himself on a ruling of the Maharam of Rottenberg (Teshuvos Maimoni Kinyan 27), who required everyone to participate in the cost of building a chasuna hall including those who didn’t have any children and those whose children had already wed, the Mahari Mintz ruled that everyone must participate in the cost of building the mikvah and we don’t accept the argument of the individuals that they don’t need to pay because they don’t need the mikvah. If one is part of a community and the community needs something all must pay their share and we don’t accept the argument of the individual that he personally does not require this service. He added that there is another reason they need to pay their full share, because even the older women need the mikvah on Erev Rosh Hashana and Erev Yom Kippur since it was customary for them to be toveil on those days.
The second source is a responsum of the Rosh (6, 9) (also cited by the Ramo (163, 6)) who was asked by a community where those who had lent money needed to bribe the local rulers to rescind an edict that absolved borrowers from repaying their loans to those lenders. The lenders argued that this expense should be shared by the entire community because if they couldn’t collect their loan they would have less money and the rest of the community would have a larger tax burden. The Rosh ruled against this argument and maintained that this was a private expense of the group who had lent money and not a communal expense.
Since the Ramo cites both of these rulings we cannot say that the Rosh disagrees with the Mahari Mintz. The Sema (note 32, as understood by Pischei Teshuvo 28) explains that the reason for the difference between these two rulings is that whereas a mikvah is a general communal need since every Jewish community requires a mikvah, the need to bribe the local authorities was a special need in this particular situation. The rationale seems to be that when one joins a community he does so with the understanding that he will share in the cost of all regular communal needs. However, an expense that was not anticipated, even if it was eventually needed by the majority of the community, does not qualify as a communal need and the majority cannot force the minority to share in the expense. One can also characterize the difference slightly differently: not that the need was unexpected but that even if many people earn a livelihood by lending money their need is not a communal need but rather a need of many individuals. This is the way the Nesivos (Chiddushim 28) understood the Sema.
The Knesses Hagedolo (163, notes on the Tur 5) claims that the Maharam Alshich (res 52) disagrees with the Mahari Mintz and maintains that one who will not benefit at all from a from a communal service is not required to participate in the expense. He mentions that a practical difference between the Mahari Mintz and the Maharam Alshich is whether an individual who acquired his own lulav and esrog needs to participate in the cost of the community lulav and esrog. This conforms with the Sema’s understanding of the Mahari Mintz since every community (in those days) purchased a communal lulav snd esrog. Therefore, according to the Mahari Mintz, even one who had no need for this service was required to participate. The Knesses Hagedolo adds that it could be that even if in general the Maharam Alshich disagrees with the Mahari Mintz, in this particular case even the Maharam Alshich would agree that the individual would have to participate in the cost since he may eventually need to avail himself of the communal lulav and esrog, in case his own lulav and esrog become unfit.
We should note that even if there is a dispute, the Elya Zutta and the Chida (Birkei Yosef OC 658, 11) rule that even one who has his own lulav and esrog must pay for the communal esrog. This conforms to the opinion of the Mahari Mintz.
We should note further that the Gra (note 81) brings support for the ruling of the Mahari Mintz from a Tosefta (BM 11, 9) which indicates that he agrees.
The Chasam Sofer (OC 193) was asked whether a town community could charge full dues to residents of the surrounding villages who had moved out of the town into neighboring villages, and now only spent Rosh Hashana and Yom Kippur with the community. He ruled that they were justified in charging them in full for expenses like maintenance of the shul, mikveh and the salary of the Rav even if the villagers would not even come for Rosh Hashana and Yom Kippur since if they would eventually need to leave their villages they or their children would naturally return to the town and avail themselves of its services. Thus we see that even if an individual does not now directly benefit from the community he still must share in the communal expenses because he could at some point in the future benefit from these expenses.
An elevator is a communal need of the tenants of a building. Therefore, according to the Mahari Mintz and all those who agree with him, namely the Sema, Gra, Nesivos, Elya Zuto and Chida, you must pay for the maintenance expenses even if you don’t benefit from the elevator. Furthermore, even those who follow the Maharam Alshich require you to pay since you or your descendants will likely at some point benefit from the elevator. For example, you may have visitors who can’t walk stairs and will park their car in the parking lot and then use the elevator. Or your wife will be expecting and need the elevator to visit the upstairs neighbor. Or you will need to change your solar heater and the installers will use the elevator. We have seen in the Chasam Sofer and Knesses Hagedolo that even the Maharam Alshich agrees in case there can be an eventual benefit that even one who normally does not benefit must pay a full share.
We need to add that there is a small expense that you do not need to pay for as long as you do not use the elevator. The maintenance company needs to reduce your payment by the amount you save the neighbors by not using the elevator. Thus, the cost for the electricity used by the elevator should be divided among those who actually use the elevator and you would not have to participate.
In conclusion: The maintenance company is justified in charging you for the maintenance costs for the elevator and must give you a reduction only on the running costs. We should note that this was the ruling of Rav Naftali Nussbaum as well (See Otsar Hamishpot 1, 493).