גריי מאטר ד, בית דין, היזק ראייה, חדירה לפרטיות השכןGray Matter IV, Beit Din, Hezeik Re'iyah, Encroachment on a Neighbor's Privacy
א׳
1In this essay, 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 Blumenzweig and Rav Shlomo Levi, two outstanding Torah scholars associated with Yeshivat Har Etzion.
ב׳
2It is important to call attention to this case because it adjudicated an important Halachah that is often neglected in our times – hezeik re’iyah, visual trespass. The Gemara devotes much attention to this subject at the beginning of tractate Bava Batra. It is an especially important Halachah, as Chazal (Bava Batra 60a) teach that Bilam praises the Jewish People upon seeing that neighbors position their windows and the entrances to their homes in a manner that protects the privacy of one another.
ג׳
3How ironic, notes Rav Perl, that in an age that stresses individual rights, this Halachah is overlooked! This case reminds us that despite the overcrowding in many contemporary communities, neighbors should make an effort to uphold each other’s privacy whenever possible. Indeed, this is especially true in light of the fact that some opinions regard this as a Torah-level obligation.
ד׳
4The Case
ה׳
5Two neighbors lived opposite each other with thirteen meters between their houses. At first, they forewent building a fence between the two properties, since each intended to allow the other full use of the two neighboring backyards. However, after the first neighbor (“builder”) began to build an addition to his house, the second neighbor (“non-builder”) demanded that “builder” cooperate in the building of a fence dividing the two backyards in order to avoid hezeik re’iyah. As a clarification, we note that Halachah regards encroachment on even one’s everyday activities in one’s property, not only one’s very private moments, as hezeik re’iyah. Furthermore, “non-builder” noted that the addition to the “builder’s” house included a balcony above the ground floor. He objected to this terrace because it would create hezeik re’iyah even if the fence were built, since one would be able, without effort, to see from the terrace into the “non-builder’s” bedroom window.
ו׳
6“Builder” responded that “non-builder” had already waived his right to build the fence between the properties and that the time to exercise this right had long expired. In regard to the terrace, the first neighbor argued that it was legally approved in accordance with Israeli civil law by the local building authority.
ז׳
7The Fence
ח׳
8The beit din ruled that the plaintiff’s right to build the fence and demand that his neighbor’s cooperation had not elapsed. The Shulchan Aruch (C.M. 171:1) states, “If one neighbor 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, there was not even a need to split the property, as the property line was already demarcated! Thus, “non-builder” had the right to demand enforcement of the existing property line154Yakir Forman notes that this is exactly the situation described in Shulchan Aruch C.M. 171:2 where the property line is demarcated and Halachah demands that each party cooperate in the building of a partition between the properties to avoid hezeik re’iyah. .
ט׳
9The beit din did not accept the claim that the second neighbor had waived his right to split the property and to the claim of hezeik re’iyah, since the original agreement was made specifically in order to use jointly the space between the houses. In such circumstances, hezeik re’iyah is not a relevant concern. However, once one neighbor wishes to split the yard, the concern for hezeik re’iyah becomes relevant; therefore, both neighbors must cooperate and share in the expenses in the building of a fence.
י׳
10”Builder” further claimed that since the backyard did not face the street, there was no concern for hezeik re’iyah, since the yard paralleled a “rechavah”, open space (see Bava Batra 6b), where, according to Rashi (ad. loc. s.v. Aval Rechava), there is presumably no concern for hezeik re’iyah.
י״א
11The beit din rejected this claim as well. It argued that the rechavah described in the Gemara was not regularly traversed and was used primarily for storage. However, the yard in the case we are discussing was used regularly for family activities. It was thus more like a courtyard described in the Mishnah than a rechavah. Therefore, hezeik re’iyah was a relevant concern.
י״ב
12Finally, the beit din argued that even absent concern for hezeik re’iyah, it is possible that one neighbor can obligate the other to cooperate in the construction of a fence between the yards. Rav Perl cites the Sema’s (no. 4) and the Taz’s comments to Shulchan Aruch C.M. 171:2 as a source for this assertion.
י״ג
13The Terrace
י״ד
14The fence would serve to prevent hezeik re’iyah between the ground levels of the two residencies but not regarding the terrace since the partition does not extend high enough. Thus, it would appear that building the terrace creates a serious halachic problem. The terrace builder 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, “builder” has established a right to engage in hezeik re’iyah. The beit din dismissed this suggestion, citing the Ramban, who states (Bava Batra 59a), “One can never establish a Chazakah in regard to Hezeik Re’iyah.” The Ramban explains:
ט״ו
15Since it is a prohibition to intentionally engage in Hezeik Re’iyah, and one cannot prevent this, as he cannot remain the entire day with his eyes closed, we must demand that the neighbor eliminate the window [from where he can peer at his neighbor’s activities] in order not to sin constantly.
ט״ז
16The Ramban compares hezeik re’iyah to personal damage such as smoke for which a chazakah can never be established. The Ramban explains that a chazakah may be established only in regards to monetary items such as damage done to a wall, since in regard to monetary matters one may waive his rights. Hezeik re’iyah by contrast is a matter of prohibited activity for which a waiver is irrelevant.
י״ז
17The Rama (C.M. 154:3) rules in accordance with the Ramban, and some poskim (cited in the Sema 154:10) rule that even a formal kinyan (transaction) does not help effectuate an agreement to waive hezeik re’iyah, since it is an absolute prohibition.
י״ח
18The beit din noted that even if there are authorities that disagree, “non-builder” emerges victorious, since he protested to beit din immediately when the building of the terrace commenced, before “builder”established a chazakah to maintain the porch. Moreover, Teshuvot Maharival (1:85) rules that hezeik re’iyah constitutes a full-fledged tort, regarding which the victim is viewed as the muchzak (the side to the dispute which maintains the status quo). Thus, “non-builder” emerges victorious even if the matter is regarded as subject of debate (a most basic rule of adjudication of monetary disputes is that the muchzak emerges victorious in case of doubt – see Bava Kama 46a).
י״ט
19“Builder” claimed that one of his windows, as well as other neighbors’ windows, already faced the second neighbor’s window, so his terrace should be no different. The beit din explained that the terrace creates a far worse situation, since one would have to make a special effort to peer through a neighbor’s window into the neighbor’s domicile; from the terrace, on the other hand, it is impossible not to see into the next person’s property, even when one is sitting. Moreover, the terrace would be located in closer proximity than where the window had been located. The beit din cited Shulchan Aruch (C.M. 154:4), which forbids expanding a small opening when it faces a neighbor, as a precedent for forbidding the creation of far more hezeik re’iyah.
כ׳
20Minhag Hamakom
כ״א
21Common 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 had become minhag hamakom to forego concern for hezeik re’iyah, as there were already a number of similar balconies built in the locale despite concerns of hezeik re’iyah.
כ״ב
22The beit din rejected this argument, noting that the Rama (C.M. 331:1) requires widespread practice to establish minhag hamakom. The beit din 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 Halachah does not recognize improper practices (minhagim geru’im) as binding, even if they are widespread. The beit din asserted that the practice to build porches that create hezeik re’iyah should be classified as a minhag garu’ah.
כ״ג
23The beit din did not regard common building practice as establishing a legitimate minhag to disregard hezeik re’iyah. It argued that buyers are not offered a choice and must accept the builders’ plans as they are; therefore, the plans do not create a proper minhag. The beit din felt that neighbors, when planning additions to their homes, must act differently than builders, since they exercise control over those additions.
כ״ד
24Shutters
כ״ה
25The beit din acknowledged a contemporary 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, according the beit din, to live without sunlight in order to avoid the hezeik re’iyah of their neighbors. Rav Perl notes that even if the beit din’s dispute with the Minchat Tzvi were to remain unresolved, the ruling would favor the victim of hezeik re’iyah, since he is the muchzak, as we noted above.
כ״ו
26Conclusion
כ״ז
27The beit din ruled in favor of “non-builder”, stating that the neighbors must cooperate and share the expenses in the building of a fence between the properties. In addition, the beit din forbade the terrace builder from using his terrace 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 so that ”builder” could not peer at his neighbor from his terrace.
כ״ח
28The beit din did not recognize the decision of the civil building authority to authorize 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 as we were by Bilam.