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Tetsave-Selling a right



I extended my apartment legally about fifteen years ago. My elderly upstairs neighbor did not need any extra room and did not want to spend money to expand his apartment and therefore he did not pay anything for my extension. However, he began using the roof of my extension as a porch. He built his Succa there and put a storage closet on it. When I took him to a din Torah, the beis din arranged a written agreement between us that he is allowed to continue using the roof as a porch but in exchange he obligated himself to maintain the roof of my extension: if the roof of my extension should need to be repaired for whatever reason he obligated himself to pay the entire cost. Recently, I heard that he is planning to sell his apartment and he wishes to include in his sale the right to continue using the roof in the same manner. However, I object. I agreed with him because I knew him for many years to be an honest person who would fulfill his obligations and use the roof properly, but I don’t know who will be his buyer. Furthermore, perhaps his buyer will be a person with a large family and he will put more wear and tear on the roof. Can I prevent him from including this right in his sale?


In order to arrive at the correct answer it critical to classify your arrangement correctly. Some dayanim view the arrangement as an agreement to allow the upstairs neighbor to make use of part of his downstairs neighbor’s property. This concept is known as chezkas tashmishim – the right to make use of another person’s property. An example of the concept of chezkas tashmishim occurs when a person leans his ladder on another person’s wall for a sufficient amount of time with the wall owner’s unconditional consent. (The Rishonim dispute if three years are required or if a very short time suffices.) Once the ladder’s owner used the wall with permission, the wall owner cannot come one day and force the owner of the ladder to remove his ladder. The reason is because the ladder’s owner, by virtue of his use of his neighbor’s wall, acquired a permanent right to use the wall for this purpose. Just like one can acquire full ownership of property so too one can acquire the right to use another person’s property.

If one views this agreement as a manifestation of chezkas tashmishim then the upstairs neighbor can include his right to use the roof in his sale. Proof of this can be derived from the Mishna (BB 60A) that rules that if one buys a house with beams that protrude over the public thoroughfare and he isn’t aware how the one who sold him the house obtained the right to place his beams this way, we assume that the seller obtained this right properly from the authorities. The Gemara (BB 23A) extends this ruling to a person who acquired a house with beams that protrude over his neighbor’s property.

From this we can derive that when a person buys a house that has beams that protrude over his neighbor’s property, the buyer automatically obtains the right to the placement of the beams and the neighbor cannot argue that he only granted permission to the seller. When one constructs beams that jut out over his neighbor’s property he is using his neighbor’s property. Thus we have proof that one who acquires chezkas tashmishim can include this right in the sale of his property. This is ruled by the Mishkan Shalom (4, 14) as well.

However, classifying your arrangement as chezkas tashmishim is incorrect. First because the right to use the roof comes with an obligation to maintain that roof whereas in the general case of chezkas tashmishim the right was either given for free or it was already paid for. In contrast, your arrangement was to allow him to use the roof in exchange for his liability for any repairs. Furthermore, you granted your neighbor full use of the roof as a porch like anyone who rents a porch. Therefore, the proper classification is that you agreed to rent your roof, in a sense (which we will explain) to your upstairs neighbor and he wishes to include in the sale of his house the rental rights that he obtained from you. If, when you made your original agreement you had addressed this issue, there would be no room for disagreement. It is only because your agreement failed to take this situation into account, that you have a dispute.

Now that we know how to classify your relationship, we first have to decide whether you have the right to terminate your agreement even if your neighbor would not wish to sell. Normally, the halacha (CM 312, 5) is that if one rents a house for a certain price but does not stipulate a time period, each party has the prerogative to terminate the agreement provided that it provides thirty days’ (for stores the time is longer etc.) notice to the other party. However, if there are clear indications that the intent of the agreement was for a longer period the agreement remains in effect for a longer period.

For example, a situation that is discussed in the SA and is very similar to your situation is one who asks someone to do him a favor and lend him his object where the SA rules (CM 341, 6) that unless there are other indications, the arrangement is permanent. In your case, your neighbor was using your roof as a porch which you feared would cause you a loss because of the wear and tear that your roof was subject to as a result of your neighbor’s use. In order to ensure that you will not suffer a loss, you agreed to allow your neighbor to use the roof provided that he obligates himself to repair any damages that result from his use. However, the purpose of the agreement was to allow your neighbor the right to use your porch. Therefore, just like the SA rules that the loan is permanent so too you do not have the right to terminate the agreement as long as your neighbor abides by the agreement and is the one who is benefitting from your largesse.

It should be noted that a person who rents any immovable property is allowed (CM 316, 1) to sublet the property if the one who sublets does not have a larger family than the original renter. However, in that situation the first renter remains the renter and he is still obligated to the owner to pay him the rent. Your situation is different because your neighbor wishes to remove himself from the picture and pass liability over to his customer.

Clear proof for your question can be brought from a ruling of the Ramah (a Rishon quoted by Shito Mekubetses BM 103A). We noted earlier that your case is somewhat similar to the case of one who lent someone an object “as a favor.” In this case the Ramah remains with a question whether the Gemara’s ruling is confined to moveable objects or extends even to fixed property, such as your roof. However, he is certain that the borrower does not have a right to sell this right to another person because the owner can claim that he wanted to do the borrower a favor but never intended for him to be able to transfer this favor to another person.

It should be noted that in your case where you only gave permission in exchange for your neighbor’s accepting responsibility to repair the roof you have another basis to block your neighbor’s sale because you can claim that you only relied on your neighbor but don’t know who his buyer will be.

We find in the Gemara and poskim that similar claims are valid. For example, the Gemara (BM 109A) rules that if a sharecropper dies, the field owner can refuse to allow his children to continue. Similarly, the SA rules (CM 176, 19) that if one partner dies, the surviving partner can end the partnership since he can give all kinds of reasons why he doesn’t want to be a partner with the heirs. The Sema (note 50) clarifies that the heirs as well can terminate the relationship with the argument that they don’t want to work with their late father’s partner.

The Nesivos (176, 35) adds that similarly if a person lent someone money with a heter issko and the borrower passes away, the lender can terminate the loan immediately with the argument that he wants to earn money and he is not sure that the heirs will earn money. Similarly, you can claim that you do not rely on anyone that your neighbor may sell to.

A case which is discussed and bears on your question is where a person borrowed a cow and passed away during the period that it was lent to him. The Gemoro (Kesubos 34B) writes that the orphans have the right to continue using the cow for the remainder of the time that it was borrowed by their father. The Sema (341, 6) understands that the owner cannot ask for the cow’s return prior to the day it was supposed to be returned by their father. However, based on the above cases, the Nesivos (note 4) maintains that the owner can demand the cow’s immediate return unless the heirs had the halachic right to use the cow even when their father was alive. Even the Sema (176, 50) agrees that if the father rented the cow, the owner can demand its immediate return.

Finally, one more case is where two people jointly rented a property. The SA rules (CM 316, 2) that one partner may not bring a replacement in his stead since the other partner can argue that he knew that he can live with his original partner but doesn’t know that he will be able to dwell jointly with his replacement.

In conclusion: You can block your neighbor’s attempt to transfer the right to use the roof of your extension to the one who will purchase his apartment for two reasons. First, it was a favor that you did for your neighbor and favors are inherently non-transferable. Second, since the right came with an obligation on the part of your neighbor you can argue that you only relied on your neighbor to abide by the agreement and also to use the roof properly but do not have the confidence that his customer will use the roof properly and/or won’t abide by your agreement or will have a larger family than your present neighbor.





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