Question

Asher is the head of the house committee. He has to
collect the monthly dues from the residents, which go towards upkeep of
the jointly-owned areas. One resident has not paid his dues for over a
year and has now gone abroad. What means does Asher have at his disposal
to recover the outstanding debt?

Answer

It is customary for a gate to be erected at the
entrance to every courtyard. All those who own a house in the courtyard
are obligated to pay their share in the construction of the gate. The same
applies to any other facility for which there is a great need or which it
is customary to provide (Choshen Mishpot 161:1).

What happens if a resident refuses to pay his due share
in the work? According to the Shulchan Oruch (Ibid. 161:4), the
other residents can go ahead with the required work and rent out this
resident’s house, using the rental money to cover his share. Once his debt
has been paid, his house is returned to him.

Let us suppose they try to rent out the house but are
unsuccessful, what next? The Nesivos (Ibid. Note 4) rules that the
other residents can force him to sell his house and take what is due to
them from the proceeds. Alternatively, they can seize other items of
property and sell them to raise the outstanding sum. What is his source
for taking this drastic step? He cites the law we quoted last week. A
person neglected to repair a hole in his fence which gave burglars access
to the adjoining neighbour’s house. He is warned that he must either
repair the fence immediately or sell the house to a more responsible
person (Choshen Mishpot 155:44).

There are two problems with this comparison. Firstly,
the Remo quotes two opinions. The second opinion holds that one can
not force the negligent owner to repair or sell. The Nesivos (Ibid.
Note 22) sides with this latter opinion. This seems to contradict his
ruling in our case, where he appears to be siding with the first, stricter
view. The second problem is the nature of the comparison. In the case of
the broken fence, it is the obligation to carry out the repair which is
the issue, and not payment for work performed, as in our case. The Emek
Hamishpot (Vol. 3, 48:16) explains that the Nesivos is not
trying to make a direct comparison between the cases but rather to show
that the same underlying principle applies in both instances. When a
person neglects to repair his fence and thus leaves the adjoining property
exposed to burglars he is in fact harming his neighbour (according to the
first opinion). We would even go to the length of forcing him to sell his
house in order to ensure that he fulfils his duty to prevent this
happening. The second opinion holds that no such obligation exists.

However, he would still agree with the underlying
principle that if an obligation were to exist, we would force him to sell
his house in order to fulfill it. The same principle can be applied to the
case of the neighbours in a courtyard. Each neighbour has an obligation to
contribute his share towards providing essential or customary facilities.
If he fails to fulfill this duty, he can similarly be required to sell his
house (or other property) in order to ensure that this obligation is
fulfilled.

Our case would be a further application of the same rule. Nowadays, it
is the accepted custom that all those living in an apartment block
contribute towards the upkeep of the jointly-owned areas of the building.
This would include paying for cleaning, electricity, elevator maintenance
and tarring the roof. The house committee is entrusted with collecting the
dues from each resident. One who refuses to fulfill this obligation can be
forced to do so, even if this means renting out his apartment to others or
selling his property. However, in order to avoid argument and anarchy one
should first seek the sanction of Beis Din before taking such action.