Translation:Shulchan Aruch/Choshen Mishpat/164

Paragraph 1- If a house and upper story belonged to two people, any damage that occurred on the walls from the roof and below must be repaired by the owner of the house. If he does not want to repair it, the owner of the upper story may compel him. Anything from the roof and above would be repaired by the owner of the upper story if he so desires. The roof itself belongs to the owner of the house and the plaster on it belongs to the owner of the upper story. There are those who say that the owner of the house is not required to repair the roof. Rather, the owner of the upper story is required to repair it. This seems to me to be the correct way to rule. The owner of the upper story is also required to attend to all the needs of the roof. This is only applies in the case of two partners. With respect to an owner and renter, however, the lower story is required to repair the roof.

Paragraph 2- If the beams of the house were loose and going into the airspace of the house within 10 tefachim of the house, he can destroy and rebuild. If they do not go within 10 tefachim of the house, the owner of the upper story can stop him. Even if the owner of the house says he will rent him a place for him to live while he fixes the roof, we would not listen to him because the owner of the upper story can say he does not want to burden himself to go from place to place in order to allow him to fix his house. If they made a condition between each other on this and there is enough airspace in the house that a person can take an average bundle on his head and enter under these beams that are hanging, he would not be able to destroy it. If he is only able to enter by bending his head, he may destroy, repair and build and the owner of the upper story cannot stop him because they originally made a condition. If the beams were not loose but the beams were lowered because the walls of the house entered the ground making it less than 10 tefachim, the expenses of lifting the house will be on both parties. If it was still more than 10 tefachim, the upper party can stop him in the manner that was explained. If there was a wall between Reuven and Shimon and it belonged to one of them, the owner may destroy it when he wants and the other party cannot object. If the wall was shaky, even if it belonged to both of them, one of them can destroy it and the other party will need to pay his share.

Paragraph 3- If both the house and the upper story fell, they would divide the wood, stones and dirt. The higher one is than the other, the more wood, stones and dirt would he take, proportionate to the difference. If some of the stones broke, we would analyze which ones are capable of breaking, the stones of the house or the stones of the upper story. This can be determined by the manner in which the house fell. We would check if the upper story fell on the lower story and knocked down the house or if the bottom stones slipped out and the upper story fell. If it is unknown how the house fell, they would divide the whole and broken stones.

Paragraph 4- If one party recognized some of the stones and they are whole stones, and the other party admits to all of them, or if he admits to some of them and says he doesn’t know about the others, the certain party would take them, even if they are larger and greater than the other stones. The other party would take a corresponding amount of whole ones.

Paragraph 5- If the owner of the upper story tells the owner of the house to rebuild so that he can build the upper story on top, and the homeowner does not want to, the owner of the upper story can build the house as it was and live inside it until the owner of the house pays him for all his expenses, and then he will build his upper story if he wants to. If neither of them want to build, the owner of the upper story would take 1/3 the land and the owner of the house would take 2/3. Similarly, if they sell the house with both parties’ participation, they would divide the money in the same manner.

Paragraph 6- If the owner of the house wants to rebuild the house, he should build it as it was originally. If he wants to modify the walls by strengthening them or making them wider than they were, we would allow him to do so. If he wants to make them narrower or make them weaker, such as where it was originally made of stone and he wants to build it with bricks or something similar, we would not listen to him. If he wants to modify the roof to have heavier and stronger beams, we would listen to him. If he wants to make the roof weaker, we would not listen to him. If he wants to increase the amount of windows or add to the height of the house, we would not listen to him. If he wanted to make less windows or a lower height, we would listen to him.

Paragraph 7- Similarly, if the owner of the upper story wants to rebuild, he can build it as it was originally. If he wants to modify the walls by widening them and strengthening them, we would not listen to him because he is putting more weight on the lower walls. If he comes to make them weaker, however, we would listen to him. The same applies to the beams of the upper roof. If he modifies them to make them lighter from what they were, we would listen to him. If he was making it heavier, we would not listen to him. If he wants to increase the amount of windows or lower the height of the upper story, we would listen to him. If he wants to make less windows or increase the height, however, we would not listen to him. If the only concern was the heaviness of the building and there was a custom allowing him to modify, however, we would follow the custom. There are those who say that this that one is prohibited from modifying is only where they each purchased or inherited the house and upper story, respectively. If they built the house from ownerless property, however, they can modify because they originally had the right to build it however they wanted to.

Paragraph 8- There are those who say that in a case of a wall between two courtyards where the area and stones belong to both of them, each one can build, raise and make as heavy as he wants, so long as he does not ruin the building based on the view of building-experts. There are those who say that this is only in a place where partners did not have the custom of caring about this. If they did have the custom to care, however, the other may stop him.