Building On The Roof

Question

Nachman lives on the top floor of an apartment block. He
wishes to extend his apartment by building on the roof above. Thirteen out
of the other fifteen residents agree to allow him to build. There remain two
objectors. Till recently, the rule was that the municipality would not grant
a building permit unless all other residents agreed. Recently the law was
changed. Now only 75% need to agree. If the civil law allows Nachman to
build despite some opposition from neighbours, can he go ahead?


Answer

Who is obligated to take care of the roof in a
multi-storey building? The Remo writes (Choshen Mishpot 164:1)
that the owner of the top floor is solely responsible for the roof. This
would seem to imply that he is also the owner of the roof, for if his
downstairs neighbour also had ownership rights on the roof, he should also
have to share the burden of upkeep. However, the Remo himself writes
(Responsa No.77) that the reason for conferring ownership on the owner of
the top floor is that this is the accepted custom. Furthermore, the Tur
(Choshen Mishpot 164:2) writes that when partners move into a
multi-storey building, they do so on the basis of local custom (as is the
case with any partnership). One example of such custom is that the roof
belongs to the owner of the top floor. Nowadays, the custom is different. It
is now standard for the roof to be considered jointly owned property. All
apartment owners have equal rights in the roof. It is therefore clear that
no single resident can build without the consent of all his
neighbours, since such building would deprive them of their rights. Even if
the actual building work would not cause any harm or disturbance, the right
to object still exists. The grounds for objection are that you are taking
away property which belongs to me. If the roof is free of building, the
residents would be able to sell it to a construction company at some stage.
However, if one neighbour has already built on part of the roof, no
construction company would be interested in such a proposition. Thus, even
if the neighbour were to argue that he is only taking his portion of the
roof, he has still harmed his neighbours (see Chazon Ish to Bovo
Basro
10:14).

We can therefore conclude that any change in the civil
law concerning building permits has no power to deprive the neighbours of
their rights. At the end of the day, they bought their apartments on the
understanding that the roof was to be jointly owned and that any changes
would only be made on the basis of unanimous agreement. The fact that the
municipality has now decided to grant building permits if three-quarters or
two-thirds of the neighbours agree does not change that understanding. Thus,
even if Nachman obtains building permission from the municipality, it is
forbidden for him to go ahead with construction until he receives the
consent of the objecting neighbours. Perhaps offering them a financial
incentive will persuade them to withdraw their objection.

Would the same rule apply to residents moving into a new
building after the change in the rules governing building permission? The
basis of becoming a partner in a jointly owned apartment block is the local
custom appertaining at the time of creation of the partnership (as per the
Tur above). The Emek Hamishpot (3:57) therefore argues that
partnerships created after the new regulations came into force could be
different. Since it is known that the municipality grants building permits
on the basis of the consent of three-quarters of the neighbours, all
partners could be viewed as having entered the partnership accepting this
condition. It might then become permissible to build despite a minority
objection.