Yitzchok bought an apartment in a new development, but
continues to live in his old home. Yiddel, the head of the va’ad habayit
(house committee) in his new apartment block, approaches him for his share in
the monthly dues. Yitzchok replies that since he does not yet reside in the
building, he does not benefit from the services provided. He therefore argues
that he does not have to pay the monthly dues. Yiddel argues that by purchasing
an apartment in the building, Yitzchok became a partner in the jointly owned
areas and is thus responsible for their upkeep. Who is right?
The Shulchan Oruch (Choshen Mishpot 161:2) rules that a
non-resident partner in a courtyard is obligated to pay his share in the cost of
installing a gate, complete with lock and bolt, at the entrance to the
courtyard. However, he is exempt from participating in the cost of "other
items". The Nesivos (Ibid. Note 2) explains that "other items" refers to
providing a booth for the watchman to sit in at the entrance to the courtyard.
The function of such a service is to prevent outsiders from peeking into the
courtyard and thus interfering with the residents’ privacy (hezek r’iyah).
Obviously, only those who actually reside in the courtyard benefit from this
service. A non-resident owner is therefore exempt from paying for this facility.
On the other hand, a lockable gate is required to keep thieves out. Potentially,
they could steal property and cause damage to the houses situated in the
courtyard. Since it is in the interest of anyone owning property in the
courtyard that it should be adequately protected, the very fact of owning a
house is enough to obligate the owner to pay for this facility.
The members of a small community bought ten seats in the
synagogue of a larger neighbouring community since they did not have their own
house of prayer. They obviously paid their membership dues in full, just as
other congregants. A number of years ago, they stopped coming to this synagogue,
even though they are still officially members. They therefore asked Rav Shmuel
Landau (Shivas Tzion 107) whether they are still obligated to pay membership
dues. He replied that since they no longer pray in this synagogue they have no
obligation to participate in the cost of lighting and heating, nor pay the wages
of the chazan (cantor) or the shamash (beadle). As they no longer derive benefit
from these services, there is no reason to pay for them. However, since they
have maintained their membership, they are partners in the synagogue and are
therefore liable for their share in its upkeep.
From these (and other) examples, the Emek Hamishpot (3:45)
derives a principle. Wherever there are partners in a property who do not
actually make use of the property since they are non-resident, etc. they are
exempt from participating in any costs which emanate from actual usage of the
facility. They would not have to pay for heating, lighting or cleaning, etc.
However, it is in their interest that the property be kept in a good state of
repair and be protected from damage. Accordingly, they would have to pay their
share of such expenses.
We can therefore conclude that both Yitzchok and Yiddel are
(partially) correct. Since Yitzchok does not yet reside in the building, he does
not benefit from the elevator, lighting and cleaning. He does not have to pay
for the electricity consumed by their use. But since he is a partner in the
building, he must pay his share in its upkeep. This would include tarring the
roof, sealing and painting the external walls, elevator insurance and
maintenance, etc. Since these services are required in order to keep the jointly
owned building in good shape, all partners must pay their share.