Sales And Repairs

Question

Avi wishes to sell his apartment and move to a different
district. He is in the middle of serious negotiations with a potential buyer
when the head of the va’ad habayit (house committee) asks him for his share
in the cost of renovations to the jointly owned areas (lobby, stairways,
etc.). Avi tells him that since he is about to sell his apartment and will
not benefit from these improvements, he should ask the new owner to pay for
them. Is his argument valid?


Answer

On the face of it, there should be a simple answer to
this question. Maintenance of the jointly owned areas is the duty of all the
partners, namely, all those who own property in the building. Accordingly,
since Avi is at present an apartment owner he is automatically also a
partner in the joint areas and has to pay for their upkeep. The fact that he
hopes he is about to sell his apartment does not alter this obligation. In
any event, who is to guarantee that the present potential buyer will
actually purchase the apartment? Indeed, it is by no means certain that Avi
will manage to sell the apartment at all! Let him pay now and when he finds
a buyer, charge him for the cost of renovations since he will benefit from
them.

What powers do the partners in a jointly owned courtyard
have if one of them refuses to pay his share in its upkeep? The Shulchan
Oruch (Choshen Mishpot 161:4) rules that they can even rent out his house to
others and take payment for the maintenance from the rent collected. The
Nesivos (Note 4) goes one step further. If they are unable to find a tenant,
they can even force the owner to sell his house or seize other items of
property and sell them. The outstanding debt will be collected from the
proceeds. The Emek Hamishpot (3:43) contends that this ruling shows that the
cost of repairs is on the present owner. The other partners in the courtyard
could have taken a different course of action. Once they had sold the house
they could have handed the proceeds to the owner. The outstanding cost of
repairs would then have been collected from the buyer, the new owner. The
very fact that the outstanding debt is collected from the proceeds of
selling his property shows clearly that he remains liable for the repairs,
despite having sold his house, since he was a partner when they were carried
out.

The Nesivos brings proof to his ruling from the case of
Reuven neglecting to repair his fence. As a result, thieves have easy access
to the house of his neighbour, Shimon. The Shulchan Oruch (Ibid. 155:44)
rules that Shimon can give Reuven an ultimatum: Either repair the fence or
sell your house to a more responsible owner! Thus, we see that neighbours
can force a sale in order to prevent (or recover) a loss. However, this
would seem to present a problem. In the case cited, it is the new owner, the
buyer, who is going to prevent a potential loss by repairing the fence, and
not the negligent seller. Does that not also show that the buyer is the one
who is going to have to pay for repairs to the joint property in our case?
The Emek Hamishpot answers that all the Nesivos wished to prove was that
there exists a power to force a person to fulfil his duty as a neighbour
even if it means selling his property. The actual remedy varies according to
the situation. In the case of the broken fence, the remedy is to sell the
house to a more responsible owner. In the case of a partner in a courtyard,
the solution is to make funds available to the other partners by deducting
the outstanding debt from the proceeds of the sale.

Even though it is now clear that Avi will have to pay his
share in the cost of renovations, the Emek Hamishpot suggests that he should
give a cheque, post-dated by two months. Thus, if he succeeds in selling his
house, he can recoup this expense from the buyer. If he stays, he will
certainly be liable for the cost of renovations.