Under The Roof


Yehudah lives on the top floor of an apartment block
which has a tiled roof. For a long time he alone has been using the area
beneath the tiles for storage. He now wishes to construct rooms in this
space, arguing that it belongs to him. Can the other apartment owners object
to his building?


Our first task is to define the ownership rights of the
individual apartment owners in an apartment block. Each owner receives his
own apartment and often a storeroom as well. Not only is the length and the
width of each apartment clearly listed in the land registry, but also its
height. Whatever is above or below this level does not belong to the
individual, but he may possibly be a partner in this area. What parts of the
building are jointly owned? Clearly, the ground on which the building stands
is joint property. In addition, writes the Emek Hamishpot (3:58),
according to the local civil law in Israel (Section 52) all sections of the
building which have not been designated as private property are considered
to be joint property. Apart from the land on which the building stands, this
would include the roof, the external walls, the foundations, the bomb
shelter, stairways, lobbies, the elevator and any joint water or heating
appliances. Thus, since the space under the roof tiles has not been
registered in the name of Yehudah or any other individual owner, we must
consider this area as joint property. In other words, when each individual
apartment owner bought his apartment, he became a partner in the building on
the understanding that this area be jointly owned. The fact that he alone is
making use of this area for storage does not confer ownership rights upon
him. The Chasam Sofer writes clearly (note to Choshen Mishpot
155:4) that the area under the tiled roof which is used for storage
purposes, as opposed to residential use, is considered to be owned equally
by all apartment owners. He adds that they are all therefore equally
responsible for the upkeep of this tiled roof.

Accordingly, we can conclude that Yehudah has no right to
build in this jointly owned space since he would thereby be limiting the use
of this area by the other owners. Indeed, the Shulchan Oruch rules (Choshen
161:5) that it is forbidden for any partner in a courtyard to
use it in any way which limits the space available to the other partners.
For this reason raising chickens or allowing animals to stand in the
courtyard is subject to the unanimous consent of all the partners (see also
Responsa of the Mabit 2:96). However, in our case, storing articles
in the jointly owned area does not constitute an infringement of the other
partners’ rights since these items can easily be removed. Thus, they are not
limiting the space available to the others. The Emek Hamishpot adds
that it is common for tiled roofs to be removed to make way for building
additional apartments on then roof. As mentioned in the article entitled
"Building on the roof" (two weeks ago), any building on the roof by an
individual owner effectively removes this option.

Yehudah’s claim that unchallenged usage of the space
under the tiles makes him owner of this area is totally invalid.
Unchallenged use of a property is not enough to confer ownership. It is
necessary for the person claiming title to this property to explain how it
came into his hands (see Tractate Bovo Basro 41a). Did he buy it, did
he inherit it, did he receive it as a gift? Failure to provide such
explanation renders the fact of unchallenged use worthless. Furthermore, in
our case the other owners could argue that they were unaware of what was
happening under the roof. Unchallenged use is only a sign of ownership if it
could reasonably have been challenged. Out of sight, out of mind.

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