P'ninat Mishpat: Counter Claims – part II (Child Care, Foundations) | Beit Din Eretz Hemda - Gazit | Beit Midrash

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Case: [We continue with repercussions (additional counter claims) of a dispute over rights to a courtyard.] The defendants (=def) object to the plaintiffs’ (=pl) operation of a gan (kindergarten) in their residential building, which causes noise, dirtiness, and congestion (children and carriages) in the building. Pl respond that it has been in operation for 12 years, so that they have a chazaka, and that there are now only seven children in it, so that it is not very disruptive. Def built an extension to their apartment (bottom floor) with a building permit years ago. Since then, def’s two neighbors have used their foundations and roof to build extensions as well. The middle floor neighbor (=mfn) has paid for the usage (9,000 NIS), whereas pl (top floor) has not, which def demand. Pl claim that there was mechila, and if they have to pay, it is to mfn, upon whose infrastructure they have built.

Ruling: Gan – At first glance, we should apply the Shulchan Aruch’s (Choshen Mishpat 156:1) ruling that a resident of a small street may not open up a non-Torah school on his property because of the congestion it entails. This is all the more so within a building shared with others.
On the other hand, Emek Mishpat (III, p. 315, based on Maharlbach 97) brings a ruling that in Charedi neighborhoods, one can make a gan in a residential building even without all the neighbors’ consent. This is because there are rarely enough public spaces for ganim, and it is important for the residents that sufficient child care is available close to the house. While this is not a simple matter, considering that the gan has been operating for twelve years without def’s protest (chezkat nezikin), they cannot now close it down. One can also factor in that the fact that the gan does offer some basic Torah education can be justification for not closing it. However, pl has to pay for extra cleaning needed because of the gan and should pay double the normal va’ad bayit payment. They also must install carpet where the gan is held, to reduce noise below, and make a proper arrangement for "parking" the carriages.
Foundations – In general, one has to pay for benefit he received from another even without agreement on such payment. Tosafot (ad loc.) deals with how this is different from the concept that if one gains without the other losing, the beneficiary does not have to pay. One answer (accepted by Shulchan Aruch, CM 157:10) is that it depends if there is a hint from the beneficiary’s actions that he would be willing to pay for it. The other is that if the benefit provider outlaid money in making it available for the recipient, the beneficiary has to pay the whole benefit. Both conditions are met here (def had to provide the municipality evidence that he built strong enough to support a column of building).