Chayim and Yisroel live in two adjoining
ground floor apartments. They have a joint garden, which they decided to
divide. Now, each family uses its half of the garden. However, they have
not yet built a fence between the two gardens. Chayim would like to erect
a fence. Can he force Yisroel to pay his share of the cost?
The Shulchan Oruch (Choshen Mishpot
157:1) rules that if partners divide up a jointly-owned courtyard, either
voluntarily or because one of the partners invokes his right to demand
dissolution of the partnership, each one can force the other to
participate in the cost of erecting a partition. Even if the division took
place many years ago, this does not prevent a partner from insisting that
a dividing wall be built now. The fact that such a demand was not made
immediately after ending the partnership does not amount to foregoing
one’s right to having a partition built. The source for this law is the
first mishna of Tractate Bovo Basro, which states that if
two partners wish to divide the jointly-owned property and build a wall
between the two halves, each one has to contribute half the land for
building the wall. Rashi (ad loco) explains that in those times,
these courtyards, which were located in front of the house, were heavily
used for such activities as cooking, baking and laundering clothes. These
activities require privacy, hence the need to build a fence in the middle
of the newly divided courtyard. This visual invasion of privacy is known
as hezek r’iyah.
Why is it that even if neighbors have lived amicably
next to each other for many years without a fence between their gardens,
one can suddenly force the other to help build a partition? Why do we not
say that failure to demand erection of a fence at the outset is the
equivalent of foregoing one’s right to privacy? Can one not forego privacy
in the same way as one foregoes money? The Rashbo (Responsa, Vol.
2, No. 268) writes that even if it is the local custom to leave adjoining
courtyards without a dividing fence, one neighbor can still force the
other to build a fence. Such a custom emanates from a mistaken idea and
therefore has no validity. It is true that one can forego financial
rights. However, the issue here is one of tznius (modesty). Acts
which are private are not meant to be performed in front of others,
including friendly neighbors. The obligation to build a fence was enacted
in order to preserve this basic Jewish trait. No individual Jew – or group
of Jews – has the right to forego this quality!
However, the Chazon Ish (Eruvin 65:52) is of the opinion that
our courtyards no longer serve the same purpose as in Talmudic times since
they are no longer used for performing acts which require privacy. Like a
lobby, they are merely common areas which are used for access and are open
to all. For this reason, he holds that one should not light Chanukah
lights at the entrance to a courtyard (or an apartment block).
Accordingly, it would seem that one courtyard (or garden) owner can not
force his neighbor to participate in building a partition between their
courtyards. Nevertheless, Rav Elyashiv (quoted in Tuvcha Yabiu No.
56) is of the opinion that one garden owner can still force his neighbor
to build a partition between their properties. Firstly, since this a
Talmudic ruling, one must ensure one complies with it wherever possible.
Secondly, even though courtyards and gardens are not used for all the
purposes listed above, privacy is still required for present day uses.
Even when relaxing in an easy chair and reading, you do not want the
neighbor’s kids staring at you!