Beit Midrash

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based on ruling 80010 of the Eretz Hemdah-Gazit Rabbinical Courts

Receiving One’s Due in a Joint Building Project – part I


Beit Din Eretz Hemda - Gazit

Adar II 5 5782
Case: The defendants (=def) are neighbors who are building a column of reinforced rooms as an extension to their apartments. The ground-floor apartment owner (=sel) signed his agreement to plans presented to the municipal planning board before entering negotiations to sell the apartment. During negotiations to buy sel’s apartment, the plaintiff (=pl) demanded that sel renege on his agreement to the plans, which he did. In the meantime, the planning board rejected the plans to build at location A and recommended location B. Pl, now an owner, rejected location B because of its impact on his garden, but agreed in principle to location C, in return for 45,000 NIS for using his ground as the column’s base. The sides decided to not hold up the building and signed an agreement for a parallel process of arbitration in beit din. Pl is suing for the 45,000 NIS. Def claims that pl may not object to the building since he bought the apartment after sel approved the plans; pl had no right to pressure sel to renege. Def is countersuing, in addition to expenses, for the value of his work to design and promote the project with the planning board, as pl is also benefitting from the new room and having his apartment’s building violations rectified. Pl say that he accepted beit din just for his own claim and not for def’s counterclaim.

Ruling: The first issue to decide is whether sel/pl were bound by sel’s agreement to the plans. The agreement was not to transfer rights to an object (including property) because the land would remain owned by sel. Rather, it was an agreement to do something or act in a certain way (kinyan devarim), which is not binding according to Halacha (see Bava Batra 3a). On the other hand, some poskim posit that an action that is widely accepted in society to obligate oneself (situmta) is binding even for kinyan devarim, and therefore we might have wanted to examine whether signing building plans falls under that category. However, in this case, it does not make a difference because sel only agreed to building in location A, which has been rejected by the planning board. Certainly, every location has its plusses and minuses, and therefore agreement to one place is not a carte blanche.

Regarding payment for using pl’s land, one cannot deny pl’s rights by arguing that he does not lose overall by the building, because in some ways he does lose. Nevertheless, beit din agrees with def that the appraisal that pl presented is illogical. First of all, land that is slated for a garden does not cost 45,000 NIS for a small patch. Secondly, the appraisal refers to the price for buying the property outright. In contrast, here we are dealing just with using it as the base to build upon, with ownership still belonging to pl, who will be using that area as an extension of his apartment. While one can demand whatever price he wants for real estate (Shulchan Aruch, Choshen Mishpat 227:51), the sides entrusted beit din to provide them with the appropriate price, which is not the inflated one.
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