Question

Eli has two ways of getting to
the bus stop in the morning. He can either go down the hill and all the way
round, which takes ten minutes, or take a shortcut through the apartment
block across the street, which only takes two minutes. He has a friend in the
building who is prepared to give him permission to use the stairs as a
shortcut. However, there is one neighbour who is totally opposed to allowing
any non-resident to use the stairs as a shortcut. Can he overrule Eli’s
friend?

Answer

The Maharam of Rotenburg was asked the following
question (Mordechai to Bovo Basro, No.558). Reuven
shares a house with several other people. He permits the public to use a
facility within his section of the house which disturbs his fellow residents.
Do they have the right to object to the public entering the jointly inhabited
house? The Maharam replied that they certainly do have objection
rights. Had he invited others to use a shared courtyard, his partners would
not have been able to object. It is generally assumed that partners in a
courtyard do not object to strangers frequenting the courtyard. However, when
it comes to strangers visiting a jointly inhabited house, it is usual for the
other residents to object. This distinction is quoted by the Remo in
Choshen Mishpot (154:4).

The Emek Hamishpot (3:9) points out that this
ruling is apparently only in accordance with the opinion of the Rashbam,
who holds that any partner in the courtyard can fill his house with as many
permanent residents as he wishes. Others are of the opinion that the partners
can object to adding new permanent residents (Rif, Rambam and
Ramban). The grounds for objection are that the increase in permanent
users makes it harder for the other residents to gain access to their houses.
They would uphold any resident’s objection to another partner in the
courtyard making his home open to the public. However, the Sema (Ibid.
Note 7) explains that even according to this stricter opinion, objection can
only be made to adding permanent residents to the courtyard. All would
agree that as many occasional visitors may be invited to the courtyard as the
resident wishes, since they do not cause a permanent change in the quality of
usage.

Accordingly, it would seem that all will agree that any
resident can give an outsider permission to use the stairs as a shortcut on
an occasional basis. Whether he can allow him to permanently take the
shortcut would depend on the opinions mentioned above. The Rashbam
would permit constant use, whereas the Rambam, etc. would allow
objection to such use. However, the Emek Hamishpot argues that
our case is not the same as that described by the Remo above. The
Remo only permits adding permanent residents to one’s house and free
access for occasional visitors. Both these categories need to cross the
jointly owned courtyard in order to gain access to this resident’s home. Each
resident has the basic right to allow free access to his own home. This does
not mean that he can permit non-residents to use the stairs as a shortcut
from one street to another. Such non-residential use is subject to the
approval of all his fellow residents. Accordingly, one objection would indeed
be sufficient to invalidate Eli’s friend’s permission.

However, the general rule is that as long as no objection
has been raised, a non-resident may use the stairs (but not the elevator) as
a shortcut (Rav Shlomo Zalman Auerbach, o.b.m.). On the other hand, one
should also bear in mind the disturbance caused to residents if their private
stairway is converted into a public thoroughfare.