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Answer: A roof requires a fence of 10 tefachim (approximately 80 cm.) (Shulchan Aruch, Choshen Mishpat 427:5), and any dangerous area (not just the roof the Torah refers to) requires a fence or covering, as appropriate (Shulchan Aruch, ibid. 7). Thus, the balcony in question seem to require a proper ma’akeh.
Who is obligated – the landlord or the renter (you)? The gemara(Bava Metzia 101b), regarding the question of who is responsible for seeing to a variety of needs of the house, sets a rule that that which requires expert work is the landlord’s domain and simple work is the renter’s. Ma’akeh is given as an example of the renter’s responsibility. Although the Pitchei Teshuva (CM 427:2) brings two opinions, a renter’s obligation is apparently of Rabbinic origin, as according to Torah law, only an owner of a house is obligated. Some explain (see Yereim 234) that the obligation was given to the renter because he is more likely to fulfill his obligation promptly. On the other hand, the Pe’at Hashulchan (ibid.) has a novel claim that the landlord is obligated, and the gemararefers to a case where he erected one and it was damaged. The Rama (CM 314:2) can be read as saying that who is obligated in ma’akeh is impacted by local minhag. We believe the minhag is that a landlord should provide safeguards for an objectively unsafe balcony (the religious obligation of ma’akeh when it is anyway safe might not be included). In any case, if the landlord refuses to do so, you are likely obligated.
Will setting up a situation in which you will barely use the balcony help? The Rambam (Rotzeiach 11:1) says that a ma’akeh is required only for a house that is lived in somewhat normally. Some want to infer that if one goes to his roof infrequently, a ma’akeh is unnecessary. However, that approach is correctly rejected (see Pe’at Hashulchan 2:(27)). Only when the roof is not fit for use (e.g., it is steeply slanted) do we say that it is excluded from the obligation (see Aruch Hashulchan, CM 427:5). Making it physically inaccessible would exempt.
Your decision to not use the balcony probably might not help, as there are still likely to be occasional circumstances in which you will want/need to use it, which is enough in this regard. On the other hand, a distinction we made in Living the Halachic Process (I, H:8) may help. We substantiated a distinction between a ma’akeh for a roof and for other places, whereby a roof has a formal obligation for a formalma’akeh even if one could effectively minimize the danger in another way. Other places are treated according to the reaching of the goal of safety. Thus it is possible that a decision to rarely use the mirpesetalong with other factors could cause a situation where there is no real danger and you might be exempt. Of course, if it is practically not safe, halacha and common sense both dictate that one cannot leave the situation, and it might be easier to pressure the owner in a way he should understand.
Therefore, it seems legitimate to be lenient to just make sure you are in a safe situation even if the official heights are not present. It is likely possible to halachically raise the height in a way that is quite cheap, as the formalistic element does not have to be that strong – just enough that the fence as a whole will support the weight of a person leaning on it (Shulchan Aruch, CM 427:5).
Bemare Habazak - Rabbis Questions (654)
Rabbi Daniel Mann
197 - Reciting Aleinu Along with the Tzibbur
198 - Whose Responsibility is it to Make a Proper Fence?
199 - Waiting Between the Beracha and the Kri’at Hatorah
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Rabbis in Midrash
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