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Ruling: Def is correct that pl did not buy the rights to the area in question, but they do have a status of a partner in it, not in the classical sense, but in the fact that the area directly under their apartment is reserved for the building use of his apartment. Specifically, if the apartment would fall or serious repairs were needed, pl would have the right to use the area as the foundation of the rebuilding or the place to begin the work (Shulchan Aruch, Choshen Mishpat 241:6). The S’ma (175:95) says that in such a case, the owner of the house above has precedence over a bar metzra (regular neighbor), and he has the first right to buy the adjoining area. There might be some grounds to argue, if def had already bought the land, whether pl’s rights allow him to employ the rules of bar metzra and cancel the sale of the other buyer (see S’ma 175:88). However, in this case, where no one has bought the area yet, pl has a clear advantage.
It is true that pl’s official status is as chocher (a long-term renter) of his apartment. However, the Shulchan Aruch (CM 175:51) says that even if one party does not have permanent rights in the land, at the point that he has rights he is considered as a partner who has precedence over a neighbor. Pl has another advantage in that he is owner along with this wife, and there is a concept that a bar metzra cannot push off a woman. While there is significant discussion whether this is true when the woman is married (see Maharit II, 4) and we would not allow the married woman to extract the property from one who already bought it, in this case where it was not yet bought, pl has a further reason for precedence.
A final major advantage that pl has is that even if def already legally obtained the area, he is not allowed to dig there because of the damage he might cause to pl’s apartment (see Shulchan Aruch, CM 214:4). Thus, def does not have authority to connect his store to the area in question, whereas pl who is directly above can do so. Thus, def does not enjoy the status of a bar metzra, who is one who is allowed and able to connect his existing property to the one he desires.
P'ninat Mishpat (832)
Various Rabbis
179 - The Ability to Collect Interest and Fines Levied by Secular Court
180 - Who Is Allowed to Build the Plaintiff’s Apartment?
181 - Unclear Language in a Divorce Settlement
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Various Rabbis
Various Rabbis including those of of Yeshivat Bet El, such as Rabbi Chaim Katz, Rabbi Binyamin Bamberger and Rabbi Yitzchak Greenblat and others.
Moreshet Shaul Moreshet Shaul: A Crown and its Scepter – part II
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P'ninat Mishpat P'ninat Mishpat: Realtor’s Fee on Large Commercial Building – part I
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
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based on ruling 84061 of the Eretz Hemdah-Gazit Rabbinical Courts
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based on ruling 81075 of the Eretz Hemdah-Gazit Rabbinical Courts
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based on appeal of ruling 80082 of the Eretz Hemdah-Gazit Rabbinical Courts
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(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
P'ninat Mishpat Complaints about Contractor’s Work – part II
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
Rabbis in Midrash
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(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
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(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
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Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the cornerstone laying for the Yeshiva Chakla’it in Kfar Haroeh – 1938)
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the cornerstone laying for the Yeshiva Chakla’it in Kfar Haroeh – 1938)
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(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
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Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 690
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 690
