Question

Yehudah lives on the top floor of a five-storey apartment building. He is trying to
sell his home and Efraim is interested in buying it. However, Efraim notices signs of a
water leak from the roof and he makes tarring the roof a precondition for the sale.
Yehudah agrees to this condition, has the work done and the sale goes ahead. About a year
after Efraim moves in, the other residents of the apartment block get together and decide
to tar the rest of the roof. Does Efraim have to pay his share of the cost? Do the owners
of the apartments below his have to participate in the cost of tarring?

Answer

In the Shulchan Oruch, Choshen Mishpot (161:6) we are informed that if a
drain pipe serves several apartments which are vertically above each other, each owner is
only responsible for the sections of pipe from which he benefits. The top section only
serves the top apartment; therefore only he has to pay for its upkeep. The lowest section
serves all the apartments; therefore, all are required to participate in paying for its
maintenance.

In our case, even though the roof is jointly-owned property, those who live on the top
floor are definitely the main beneficiaries of its remaining water-tight. It would
therefore follow that they alone should be responsible for paying for its upkeep. However,
as is well-known to all those who live in apartment buildings in Israel, when the roof
needs resurfacing, all apartment owners are required to share the cost. Why is this so?
The reason is that this has become the accepted local custom (minhag hamedinah) for
all to share in the cost. Such a local custom, relating to monetary matters, overrides the
strict letter of the law. Therefore, whoever purchases an apartment does so on the
understanding that he will have to share in the cost of such repairs. Even if a leak is
discovered above one of the apartments on the top floor, all owners will have to
share in the cost of the resurfacing.

Let us imagine that in the above case the residents living below the leaking roof were
ready to pay their share, but those on the other side had their reservations. ("My
great uncle’s second cousin knows some guy who does such repairs really cheap")
The delaying tactics left the owner of the top apartment in a very wet and sorry state!
His neighbours below decided to proceed with the repair without delay, sharing the cost
between them. The next winter, guess what? – the roof started leaking on the other
side! This time, those on the other side demanded immediate repair, with all owners
participating in the cost, "as is the custom". The law in such a case is that
those who participated in the increased cost of last year’s repair are exempt from
their share of this year’s repair. When they paid extra money to enable the leaking
roof to be repaired within a reasonable time, they did not forgive the other residents
their due share of the cost. Rather, they were keeping this money as a "credit"
against future repairs. Now is their chance to cash in on this credit.

In our case, only Efraim paid for the repair on his side of the roof (it being included
in the price of the apartment). Neither he nor Yehudah, the previous owner, had any
intention of exempting even those who lived vertically below them from their due share of
payment. He may be exempt from paying for tarring the other side of the roof, but all the
others have to pay their share.

THEREFORE, in the question at hand, Efraim does not have to participate in the
cost of tarring the other side of the roof, but all the other neighbours must pay their
share. This includes those who live vertically below Efraim. Only those who derive benefit
have to participate in the cost of the upkeep, unless established local custom dictates
otherwise. Our case is an application of this principle. By the same token, someone who
lives on the ground floor may also be required to share in the cost of maintaining the
elevator, even though he derives no benefit from this facility. It all depends on local
custom.