The residents of 32, Olive St. heard
that an apartment building was to be constructed on the vacant lot next to
their building. On examining the plans, they found that the windows of the
proposed building would directly face their windows. Do they have the
right to demand that the plans be changed so that the windows do not
intrude on their privacy?
The mishna in Tractate Bovo Basro (60a)
states that it is forbidden to create a new doorway or window which faces
one’s neighbor’s door or window on the opposite side of the courtyard.
However, door-facing-door or window-facing-window is permitted if the
neighbor lives across the street. The gemoro informs us that the
source of this law is the verse (Bamidbor 24:2) where Bilam
saw that the Jewish people were “dwelling according to its tribes”—that
the tent openings did not face each other. For this reason, he declared
that they were worthy of having the Divine Presence dwell amongst them.
The Rashbam explains that the requirement to stagger windows and
doorways so that they should not face each other stems from the need to
preserve privacy. When doors or windows face the street, privacy is in any
case disturbed by the fact that passers-by can see into the house. As a
result, no private activities are performed in front of the window.
Indeed, passing horse riders can even see inside through high windows.
Directly facing windows would only be forbidden on upper floors. The Ramban
disagrees. He only permits low directly facing windows across the street.
The Shulchan Oruch (Choshen Mishpot 154:3) follows his
opinion, only permitting windows up to a height of four amos
(approx. two meters).
There would therefore seem to be no halachic
justification for building neighboring buildings with directly facing
windows. Why is it then that almost all new religious neighborhoods are
constructed with this feature? The Maharit Tsahalon (Vol. 2, No.
253) discusses at what distance the issue of visual intrusion (hezek
r’iyah) ceases to be a problem. Some people have very good eyesight
and can clearly see far-away objects. Would one then say that a huge gap
is required between houses? He comes to the conclusion that it is only
forbidden to open up a window which looks onto the neighbor’s adjoining
courtyard. Should the courtyard be far away, there is no reason why his
window should not face that direction. Local custom would dictate at what
distance hezek r’iyah ceases to be a problem.
This raises a problem. Last week, we quoted the Rashbo (Responsa,
Vol. 2, No. 268) who states that no individual or group has the power to
forego visual intrusion rights since they are designed to preserve the
basic Jewish trait of modesty. Accordingly, local custom cannot dictate
that no problem exists even though there is still visual intrusion.
However, the Sema (157, Note 2) explains that only where there is
clear and constant visual intrusion does foregoing one’s rights not help.
Accordingly, writes the Emek HaMishpot (Vol. 3, 11:6), failure to
build a fence next to the neighbor’s courtyard in Talmudic times would be
forbidden. Since the courtyard was used for a multitude of domestic
purposes, this would constitute a major visual intrusion. No local custom
could change this law. A window is different, since its prime function is
to allow air and light to enter the house. We are not concerned that a
person will stand at the window to observe what his neighbor is doing in
the courtyard, even though he is able to see. Local custom is therefore
effective. The same would apply to facing windows. Local custom would also
dictate the minimum distance between facing windows (currently, six or
eight meters between buildings).