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Safeguarding Our Rooftops – Erecting A Fence On Public Buildings

 

This week’s parasha teaches of the mitzva of installing a fence on rooftops. Who is obligated to erect it – the owner of the property or the actual user? Is there a difference if the fence requires a professional to install, or not? If both the owner and the user wish to perform the mitzva – whose is it? Is there a difference between privately owned and jointly owned property? Who is obligated to fence in a sharp incline? Does the roof of a shul require fencing in? Does the bima platform in shul meet the halachic requirements for a fence, or is fencing it just a practical necessity? Does a municipal building require a fence, and if so, whose obligation is it? Does the makeup of the city population make a difference? How can the mitzva be fulfilled if the neighbors oppose to installing a fence on their joint roof? Of this, and more, in the coming article.

Sources

In this week’s parasha we read: “When you build a new house, you shall make a fence for your roof, so that you shall not cause blood [to be spilled] in your house…” (Devarim 22:8). This pasuk teaches of the obligation to erect a fence around a roof. The article last year discussed the nature of the mitzva of erecting a fence. This year, we will continue the topic, focusing on the obligation in public buildings, rented property, and others.

The quoted pasuk presents two mitzvos: 1) The mitzva to erect a fence on a roof, and 2) the mitzva to remove hazards from one’s property. Oftentimes, the two mitzvos overlap: a fenceless roof can certainly also be a safety hazard. However, in cases that don’t, erecting a fence is compulsory without the roof being a hazard. As the Chazon Ish explains (CM, likutim 18:2): Some roofs may not be dangerous because people normally keep away from the edges. In this case, using it is permitted and it is not a hazard like a rickety ladder which must be removed, fixed, or disposed of. However, a roof that meets certain halachic criteria must be fenced, regardless of the danger involved.

The Shulchan Aruch (CM 427) lists the conditions a roof must meet to be included in the mitzva of erecting a fence, as well as guidelines for the fence. These details appeared in last year’s article on this topic (Ki Seitze, 5781). These conditions only apply to a roof that is not considered a hazard like a rickety ladder.

Summary:

A roof that is a safety hazard – it is accessible to children, slippery, or narrow — must be fenced in both under the mitzva to fence in a roof and the mitzva to remove hazards from one’s property.

A roof that is not an obvious hazard which regular people usually exercise care when approaching must also be fenced because of reckless people who may approach it carelessly. This roof is also included in the mitzva of fencing in a rooftop.

A roof that does not meet all the halachic criteria: because nobody lives under it, for example, and is not an obvious safety hazard, does not require a fence.

A roof that doesn’t meet all the halachic criteria but is an obvious hazard, must be made inaccessible either by locking it up or fencing it in. Since it is an obvious hazard, it must be removed under the mitzva of “…You shall not cause blood [to be spilled] in your house…”.

A rickety ladder or other hazard which is not on the roof of a structure does not require fencing under the mitzva of erecting a fence, but does require one under the prohibition of “…You shall not cause blood [to be spilled] in your house…”.

Renting

Who is obligated to fence a rented roof? The Mishna (Bave Metzia 101b) rules that generally tasks that require a professional must be covered by the owner, while tasks that can be done by a layman are the obligation of the renter. The Gemara rules that the renter is obligated to fence in the roof of rented property and the Shulchan Aruch rules accordingly. It would seem that, in the past, erecting a fence did not require a professional.

Are renters still obligated to foot the bill today, despite the fact that changes in buildings are usually done by professionals, or does it revert back to being the owner’s obligation?

The Rishonim (Smag 79; Hagahos Maimonios, Rotzeiach 11:1:1; Rabbenu Yerucham 21:5) write that the Torah requires the homeowner to erect the fence. However, since he is suspected of disregarding it or forgetting about his obligation, the renter is rabbinically obligated to install it. (According to the understanding of the Pe’at Hachulchan 2:27; Dvar Yaziv CM 82:3). However the Knesses Hagedola (CM 426) Arah D’rabonon (403) understand it is the renter’s Torah obligation. See Pischei Teshuva (footnote 2) where both opinions are noted.

Apparently, the renter’s obligation to fence in a roof does not depend on the nature of the work involved. Therefore, even where erecting a fence requires a professional, it is the renter’s obligation, not the owner’s. The issue only whether the source is the Torah or rabbinic.

Two Vying For the Mitzva

What happens if both owner and renter are eager to perform the mitzva — whose is it? The Minchas Chinuch (mitzva 546) writes that if both want to merit the mitzva and bracha involved, since the Torah obligates the homeowner (according to his opinion), he is the one who merits the mitzva and the bracha. Only if he didn’t perform it can the renter step in and claim it for himself.

Borrowed Roof

The Mabit (1:101) is recorded to have asked the author of the Shulchan Aruch about the following case: one lives in house with a roof but had no use for it. Since his neighbor needs a roof for doing laundry and resting, he allows him to use it. Who is obligated to fence in the roof? Is it the homeowner or the neighbor?

Rabbi Yosef Karo answered that neither were obligated.  Only the roof of an inhabited space requires a fence. In this case the homeowner is not obligated because he doesn’t use the roof, and for the neighbor who uses it, it is not the roof of his living quarters. If we still wish to obligate them to install a fence, it should be installed by the user of the roof, not the homeowner.

Selling Unfenced Property

The D’var Yatziv (CM 82:1) was asked if a builder is obligated to fence in a roof before handing it over to the buyer, or perhaps the mitzva belongs to the buyer. He answers that one who builds a house for his own use is obligated to fence in the roof. If he forfeited the mitzva and sold the house without a fence, he lost the mitzva. However, a contractor who built a structure for marketing is not obligated to erect a fence, and he is permitted to sell the structure sans a fence. The buyers are obligated to install the fence.

Public Hazards

The Shulchan Aruch writes (CM 427:4) that the whole city is obligated to fence in hazards in the public areas to prevent people from getting injured or otherwise damaged (an open cliff, a dangerous incline, etc.). Practically, elected city officials are required to undertake the project, but no specific person can be charged for failing to do so. The obligation to fence in hazards does not fall under the mitzva of erecting a fence but under the mitzva in Parasha V’eschanon (4:9) “…Beware and watch yourself very well…” that teaches of the prohibition to endanger oneself. The Aruch Hashulchan adds that although the obligation rests upon the city officials, anyone who volunteers to fence in a hazard in a public area is fulfilling the mitzva of “…Beware and watch yourself very well…”.

Shul

The Shulchan Aruch (CM 427:3) rules that the obligation to construct a fence around the roof of a building owned by several owners rests on them all equally. However, a shul or Beis Midrash which is not intended for residential use is exempted from the obligation. The reason for this is multifaceted:

The Sma (427:4) explains that a shul doesn’t belong to one entity but is rather dedicated to any person who wishes to serve Hashem in prayer and Torah study. The Taz explains further: since a shul essentially belongs to all Jews, and even a Jew who lives far away may one day come and use it, nobody is obligated to install it because there are no owners.

However, several Achronim (Magen Avraham, Zait Ra’anan 930; Shulchan Aruch Harav, Shmiras Haguf v’Hanefesh 1; Ben Ish Chai, Rav Pe’alim II, YD 36, and others) opine that the reason is because the shul’s roof is not used. Therefore, no fence is required.

The Magen Avraham adds here, that while a shul dedicated to the entire Jewish nation does not require a fence, one built for specific members, does (according to the Sma and Taz).

Another issue the poskim take up here is the platform used for reading the Torah. The Ben Ish Chai writes that a platform raised ten t’fachim (80 centimeters) or more is a safety hazard and must be fenced properly. The Maharam Schick (547) adds that hazards in shul must be properly attended to just as other public hazards.

The Minchas Yitzchak (volume 5, chapter 122) discusses a communal social hall. He rules that unless the roof is locked the community is required to install a fence.

Public Buildings

Who is obligated to fence in the rooftops of municipal buildings, and can a blessing be recited?

Where a building belongs to the residents of a city and officials are voted into office by the locals, the elected public officials are responsible. The Sma and Taz’s exempt does not apply here because the buildings belong only to the locals.

Where the residents are both Jewish and non-Jewish, and the municipal buildings belong to the locals, the Shach notes (CM 427:2) that the Achronim are disputed. Therefore,  the of a building that is jointly owned by Jews and non-Jews requires fencing but no blessing is recited upon installation.

Jointly Owned Property

A Jew lives in an apartment building and wants to erect a fence on his building’s rooftop as the Torah mandates, but his neighbors — not only refuse to share the cost, but refuse to grant him permission to do so. What should he do?

This question was presented to Rav Wosner (Shevet Halevi IV 228), who answered that he should install a fence only on the portion of the roof that covers his own apartment. Although he doesn’t fulfill the mitzva of constructing a fence with this partial rail, he does, nevertheless, diminish the danger to the best of his ability, and under the mitzva of “…Beware and watch yourself very well…” he is obligated to do the best he can.

 

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