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Vayigash-Buying an Apartment that Incorporates Common Property

 

Question

I am interested in buying an apartment in a condominium. The apartment that I am interested in buying is on the ground floor of a forty-year-old building. One of the previous owners converted the apartment into a duplex by building a second level under the original apartment. The area that he added onto the original apartment was partly a "garbage room" where the building's garbage cans were once kept and partly was ground under the building which he dug out. Thus, this level of the apartment is officially joint property. In practice, the seller uses the property as if it is his and none of the neighbors is presently objecting to his use. Furthermore, the present owner has no documents to prove ownership and does not know if the one who originally built did so with the neighbors' express permission or, perhaps, even paid the neighbors for the property. Is there any halachic problem with my buying the apartment and continuing to use the property and second, in case one day a neighbor does object, am I at risk that the lower level will be taken away from me?

Answer

We will begin with your second question since that will help to answer your first question as well.

In case a neighbor objects, we first must consider on what basis he can object. The basis for a neighbor's objection is the fact that the lower floor once belonged to all of the neighbors as can be proven from the fact that the land on which your lower floor is built is (still) registered as land that is jointly-owned by all of the apartment owners in the building. This proves that when the building was built this land belonged to all of the apartment owners.

When a property is jointly-owned, the law (CM 140, 15) is that none of the partners has the right to use the property in a manner that prevents the other neighbors from using the property, unless he is granted permission to do so by all of the other owners. Since you wish to continue using the apartment in the manner that your seller uses it at present, which prevents your partners from using the property, the burden of proof will fall on you to prove that somehow you acquired the right to use the property even in a manner that prevents your partners from using the property.

In general, there are three claims that a partner could make to allow him exclusive use of a property that was originally jointly-owned. We will list the three possible claims and see if any of these will guarantee you, in your situation, the right to continue using the property in this manner.

One claim that a person could make is that one of the prior owners acquired full ownership of the jointly-owned property by buying it or receiving it as a present from all of the neighbors. A second claim is that one of the prior owners just received permission from the other neighbors to use the common property in this manner (indefinitely). The third possible claim is that the one who dug out the ground and converted that and the garbage room into usable rooms did so in the common interest at his own expense and the neighbors never reimbursed him for his expense.

The basis for the third claim is that if someone improves another person's property, the owner has two obvious choices to deal with the improvement: He can tell the one who improved his property to remove his improvement or he can allow it to remain. If he allows it to remain, he must compensate the one who improved the property a certain amount as a yoreid-one who worked and perhaps spent money to improve a person's possession without having been hired to do the job. The exact amount depends on various factors. (See Mishpatei Yosher vol. 2 chapter 2.)

Until the one whose property was improved pays (See Mishpatei Yosher vol. 2), the one who improved the property, the one who improved the property may use the improved property for free. In your situation, there is a possibility that the land still belongs to all of the neighbors and the right the previous owners had to use it is just because the neighbors never paid him for the improvement he made to the common property.

It is clear that the third possibility will not give the one who is using the joint property the same rights as the first two. One major difference is that if the neighbors later reimburse the one who improved the common property, they can force him to surrender his improvement to them. The second difference is that if instead of using the property himself, the one who improved it rents it out to others, under certain circumstances he will need to share the rental income with his neighbors even before they pay him for his improvement. (See Mishpatei Yosher chapter 5 din 10.)

If you wish to make one of these claims, since it is a claim that a change was made to the property's original status as being jointly-owned with no compensating privileges given to any of the joint owners, you will need to prove any claim you make. Thus, if you claim that one of the prior owners of your apartment bought out all of his neighbors, you will need to prove this claim.

The usual proof of such a claim is a contract or a registration. However, your seller does not have any documents and so neither will you. Therefore, we will need to explore what evidence you can present.

Besides the difficulty to prove any claim, you can't even really make any of these claims because a claim must be made with certainty and you cannot make any of these claims with certainty because you do not know what happened. However, there is a legal rule that since purchasers and heirs are not expected to know with certainty what transpired in the past, beis din makes, on behalf of heirs and purchasers, any reasonable claim, a concept known as ta'aninon. (This concept is discussed in BB 23A and other places.) Therefore, beis din can claim any of three possibilities on your behalf.

However, even though in this way you are able make the claim, in order to prevail you must still present evidence to prove the claim. Thus, we have to examine how you could prove these claims without having a deed or a contract.

The usual method for proving ownership in the absence of a document is known as a chazoko. The laws concerning this method are found in Chapter 3 of BB and CM 153-155. If a person can prove that he occupied a property for three years without any objection from the original owner(s), that is considered evidence to prove that he acquired the property from its original owner(s). Note that if there is an alternative reason to explain the former owner's silence, occupation will not create a chazoko.

Thus, since the prior owners occupied the property for more than three years and none of the neighbors objected and there is no other justification for their silence, you can successfully prove a claim that a former owner acquired the downstairs from the neighbors.

In your situation the neighbors could reply that they did not give the land to the prior owner but just granted permission to build and use their land. This is because, chazoko can only serve as proof for the minimum claim that is explained by that chazoko. This is derived from the Gemara (BB 35B) that discusses an owner who handed fruits that grew on land to a tenant who then claimed that he acquired ownership from that prior owner. (In the case of the Gemara it was necessary to support this claim by protesting before three years elapsed but in your situation this probably is not necessary.)

Practically, this will not pose a problem for you since what you desire is only to continue using the property indefinitely.

The difficulty with this approach is that if some of the apartments are jointly-owned by husbands and their wives, as is quite common, the Gemara (BB 50B) maintains that chazoko will not suffice as proof that the wives agreed to sell their part of this property. The Rashbam and others explain that the reason is because a married woman can explain her silence as due to her relying on her husband to object. Therefore, the fact that she was quiet does not constitute proof that she agreed to part with or allow someone indefinite use of her portion of the joint property. Therefore, it seems that while you have nothing to fear from male owners, if a married woman objects to your use of the property you will have to buy her out or pay some rent to her.

The Gemara makes an exception even for a married woman if the one who wishes to employ chazoko did not merely use the property for three years but damaged the property by digging ditches in the ground during this period. We assume that even a woman will not sit idly by while someone damages her property. The Rishonim dispute whether this exception applies even if the one who dug the ditches is a third party who claims that he acquired her property or only if it is her husband who wishes to claim that he acquired her property from her.

The position of the Rama, which is also held by the Tur (CM 149, 8), is that this exception applies even when the person digging the ditches was a third party. However, many Rishonim including the Ritvo maintain that it only applies if it is the husband who claims he acquired her portion.

In your situation, since the lower floor was incorporated into the apartment you contemplate buying, it was even more damaging from the standpoint of a woman neighbor than digging a hole in her field, since by incorporating it into another apartment it becomes totally inaccessible to her. This is even more clear in your situation since the property was converted into bedrooms and does not have a kitchen and thus it cannot be readily converted into a separate apartment.

Therefore, those who maintain, like the Tur and the Rama, that actions that damage a married lady's property do establish a chazoko will maintain that you may continue using the property in the manner it is being used up until now, since you have a claim that is supported by a valid chazoko.

We note that you need not fear that one of the neighbors will claim that the reason he never objected to the prior owners' use of the property was because he was happy that he improved the property but since he didn't have the money to pay for the improvement he never objected. The reason is because if that were the case, he should have objected within three years since the prior owners used the property as if it was their own and he should have been aware that if he does not object the one living there will claim that he was given permission to live there indefinitely.

In conclusion: Before deciding to buy the apartment, you should take into account that you probably will never be able to claim based on Torah law that the lower floor belongs to you. Under secular law it definitely will not belong to you since it remains registered as common property. Furthermore, there is a slight chance that a married woman will claim that she never acquiesced to the former owner's incorporating this floor into his apartment and there is a dispute among the Rishonim whether her claim is valid. If that case goes to beis din for resolution they will probably make a compromise.

 

 

 

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