Fallout from Underground Encroachment – part I

Based on ruling 71018 of the Eretz Hemdah-Gazit Rabbinical Courts

Case: Defendant #1 (=def1) built a house next to the lot owned by defendant #2 (=def2). His sewer pipe went partially under def2’s property. In 1998, def1 and def2 signed an agreement whereby they would exchange property so that def1 would get the land over the pipe, but the agreement was never taken to the land authority for implementation. The plaintiff (=pl) bought def2’s plot and built a house on it not along the lines of the property exchange. As pl’s house was being built, in 2004, the parties made a basic agreement by which pl would do landscaping as they like on top of the most of the pipe. Pl claims that the presence of the pipe raised the cost of their development. Additionally, the sewer is faulty and has more than once gotten clogged and leaked, giving off horrible smells; this causes his property to devalue. Pl demands the removal of the pipe and/or compensation for various elements of more than 200,000 shekels. Def1 claims that the land exchange was binding and that def2 asked as a favor not to report it right away to the authorities and that pl was told about the situation before buying the lot. Def2 says that he changed his mind on the land transfer the day after signing that agreement and that it is probably not possible to carry it out legally. He told pl about the problem and demands that pl finish payment for the house and adjudicate with def1. Pl responds that since the contract states that the property is free of the existence of any other parties in it, def2 is in breach of contract and does not yet deserve the final payment.



Ruling: The first question to decide is whether the land swap agreement took effect. Its language is: "We agree to a transfer of land..." This is not the language we find in the sources (see Shulchan Aruch, Choshen Mishpat 191:1) for documents of transfer, but rather "is sold to you," "is given to you," etc., which describe the transfer in the present. The S’ma (191:6) says that if an actual language of transfer is used, it can effect a kinyan even in past tense. However "agree to a transfer" is not a language of effecting a kinyan. The logic of writing a document which does not have "teeth" exists in a case like this, where there is a need to start an unclear process of registering the land changes by the authorities. This first requires an agreement, but it was not necessarily supposed to be final at that point, before it became clear how things would develop. In any case, Halacha recognizes the possibility of an agreement that is declarative and not operative (see Bava Batra 3a). We also accept the opinion that land sales (and, likewise, swaps) are not final until they are registered in the Tabu or the equivalent.

Although there is a machloket (K’tzot Hachoshen and Netivot Mishpat in CM 203) on the matter, we accept the opinion that our standard land sales contracts are obligations to sell an object. However, here the agreement is not written as an obligation. Even if it had been, the agreement of 2004 replaced the land exchange arrangement with a different one. Therefore, there is presently no valid agreement to swap pieces of land.