(2009/5770)

This week we present an important ruling of the Beit Din (rabbinic court) of Gush Etzion that appears in Techumin 19:55-59.  Rav Gidon Perl, the longtime Rav of Alon Shevut, wrote the decision on behalf of his two colleagues on the court, Rav Eliyahu Blumentzweig and Rav Shlomo Levi, two outstanding Torah scholars associated with Yeshivat Har Etzion. 

We call attention to this case because it addresses an important Halacha that is often neglected in our times, Hezeik Re’iyah, encroachment on a neighbor’s privacy.  The Gemara devotes much attention to this subject at the beginning of tractate Bava Batra.  It is an especially important Halacha as Chazal (Bava Batra 61) teach that Bilam praises the Jewish People with his celebrated proclamation “Mah Tovu Ohalecha Yaakov” (how beautiful are your tents O Israel; Bemidbar 24:5), in light of seeing that neighbors positioned their windows and entrances to their homes in a manner that protects the privacy of one another. 

How ironic, notes Rav Perl, in an age that stresses individual rights, that this Halacha becomes overlooked!  This case reminds us that despite the overcrowding in many contemporary communities, an effort should be made to uphold the privacy of neighbors whenever possible.  Indeed, this is especially true in light of the fact that some opinions regard this as a Torah level obligation.

The Case

Two neighbors lived opposite each other and the distance between the houses was thirteen meters.  From the beginning of their living in close proximity they forego building a fence between the two properties with the intention of each allowing the other full use of the two neighboring backyards.  However, after the first neighbor began to build an addition to his house the second neighbor decided to demand the division of the backyards and that the first neighbor share in the expenses to build it. 

The addition to the first neighbor’s house included an above ground porch and the second neighbor claimed that the porch will create Hezeik Re’iyah since without effort one would be able to see from the porch into the neighbor’s bedroom window.  As a clarification, we note that Halacha regards even encroachment on one’s everyday indoor activities as Hezeik Re’iyah and not only in regard to one’s very private moments. 

The first neighbor responded that the second neighbor had already waived his right to build the fence between the properties and that the time to exercise this right had long expired.  In regards to the porch, the first neighbor argued that it was legally approved in accordance with Israeli civil law by the local building authority.

The Fence

The Beit Din ruled that the right to build the fence and demand that the neighbor shares the expenses had not elapsed.  The Shulchan Aruch (Choshen Mishpat 171:1) states “if one of the neighbors demands to split the common outdoor area and to take hold of his share…the other neighbors may be coerced to split the property”.  In this case the neighbors did not have a need to split the property as the property line was already demarcated. 

The Beit Din did not accept the claim that the second neighbor waived his right to split the property and the claim of Hezeik Re’iyah, since the original agreement was made specifically in order to jointly use the space between the houses.  In such circumstances Hezeik Re’iyah is not a relevant concern.  However, once a neighbor wishes to split the yard, the concern for Hezeik Re’iyah becomes relevant and therefore both neighbors must build a fence and share its building costs.  .

The Beit Din also rejected the claim of the first neighbor that since the backyard does not face the street, there is no concern for Hezeik Re’iyah.  The first neighbor claimed that their yard paralleled the “Rechava” described in Bava Batra 2a and 6b from where it appears from Rashi (6b s.v. Aval) that there is no concern for Hezeik Re’iyah.

The Beit Din responded that the Rechavah described in the Gemara was not regularly traversed and was primarily used for storage.  However, the yard in the case we are discussing was used regularly for family activities, like the courtyards described in the Mishnah (Bava Batra 2a), and thus Hezeik Re’iyah is a relevant concern.

Finally, the Beit Din argued that even absent concern for Hezeik Re’iyah it seems that there is an obligation to build a fence between the yards.  Rav Perl cites the Sma and Taz to Shulchan Aruch C.M. 171 as a source for this assertion.

The Porch

The fence will serve to prevent Hezeik Re’iyah between the ground levels of the two residencies but not regarding the porch.  Thus, it would appear that building the porch creates a serious Halachic problem. 

The first neighbor potentially could claim that a Chazakah (established living pattern that cannot be disturbed) was established that the two neighbors live in close proximity and therefore the first neighbor has established a right to engage in Hezeik Re’iyah to his neighbor.  The Beit Din dismisses this suggestion, citing the Ramban (at the conclusion of the third chapter of Bava Batra) “One can never establish a Chazakah in regards to Hezeik Re’iyah”.  The Ramban explains

“Since the neighbor will certainly violate the prohibition to intentionally engage in Hezeik Re’iyah, and one cannot prevent this as he cannot remain the entire day with his eyes closed, therefore we must demand from the neighbor that he eliminate the window [from where one can peer at his neighbor’s activities] in order not to constantly sin”.  

The Rama (C.M. 154:3) rules in accordance with the Ramban and there are even Poskim (cited in the Sma 154:10) that even a formal Kinyan (transaction) does not effectuate an agreement to waive Hezeik Re’iyah since it is an absolute prohibition.  The Beit Din noted that even if there are authorities that disagree, the second neighbor emerges victorious since he protested to Beit Din immediately when the building of the porch commenced before the first established a Chazakah to maintain the porch.  Moreover, in regards to Nezek (damages), Teshuvot Maharival (1:85) rules that Hezeik Re’iyah constitutes a full-fledged tort, where the victim is viewed as the Muchzak (the side to the dispute which maintains the status quo) and thus the second neighbor emerges victorious even if the matter is regarded as subject to debate (a most basic rule of adjudication of monetary disputes is that the Muchzak emerges victorious in case of doubt, see Bava Kama 46a).

The Beit Din similarly rejected the first neighbor’s claim that there already existed a window which faced his neighbor’s window and that other neighbors have windows facing his house.  The Beit Din explained that the porch is a far worse situation since regarding the window one would have to make a special effort to peer into the neighbor’s domicile but on the porch it is impossible not to see into the next person’s property even when one is sitting.  Moreover, the porch will be located in closer proximity than where the window had been located.  The Beit Din cited Shulchan Aruch (C.M. 154:4), where it forbids expanding a small opening when it faces his neighbor, as a precedent regarding the neighbor which creates far more Hezeik Re’iyah.

Minhag Hamakom

Common commercial practice (Minhag Hamakom) is a major consideration in adjudicating monetary disputes (Shulchan Aruch C.M. 201:2, 215:8 and 331:1).  Accordingly, the first neighbor noted that it has become Minhag Hamakom to forego concern for Hezeik Re’iyah as there were already a number of porches such as these which were built in the local where the same concerns arose. 

The Beit Din rejected this argument, noting that Rama (C.M. 331:1) requires widespread practice to establish a Minhag Hamakom and that it did not regard this arrangement of building porches as sufficiently prevalent to qualify as Minhag Hamakom.  Moreover, it noted (as rabbinic courts frequently do) that Tosafot (Bava Batra 2a s.v. Bigvil) assert that Halacha does not recognize improper practices (Minhag Garu’ah) as binding, even if it has become a widespread practice.  The Beit Din asserts that this practice regarding porches that create Hezeil Re’iyah should be classified as a Minhag Garu’ah. 

The Beit Din did not regard common building practice as establishing a legitimate Minhag to disregard Hezeik Re’iyah.  The Beit Din argued that buyers are not offered a choice and must accept the builders’ plans as is; therefore a proper Minhag is not created.  The Beit Din felt that neighbors must act differently than builders when planning additions to their homes, over which they exercise control.

Shutters

The Beit Din acknowledged a work known as Minchat Tzvi which states that Hezeik Re’iyah is no longer a relevant concern since we commonly have shutters and blinds to cover our windows.  The Beit Din rejected this opinion since people wish to open their shutters and blinds during the day.  They are not required, said the Beit Din, to live without sunlight in order to avoid the Hezeik Re’iyah of their neighbor.  Rav Perl notes that even if the Beit Din’s dispute with the Minchat Tzvi remains unresolved, in a case of doubt the ruling will be in favor of the victim of Hezeik Re’iyah since he is the Muchzak, as we noted above. 

Conclusion

The Beit Din ruled in favor of the second neighbor, stating that the neighbors must share in the cost of building the fence between the properties.  In addition, the Beit Din forbade the first neighbor from using his porch or even building a temporary entrance to it until Hezeik Re’iyah was eliminated.  The remedy, ruled the Beit Din, was to build a partition two meters high along the outside of the porch so that the first neighbor cannot peer at his neighbor from his porch.

The Beit Din did not recognize the decision of the civil building authority authorizing the building since its decision contradicted a fundamental Torah value.  Indeed, the Beit Din called upon the local authorities to take greater cognizance of Hezeik Re’iyah in order to create communities in which we deserve to be commended with the praise of “Mah Tovu Ohalecha Yaakov”.