Question: There is a plumbing leak from an upper-floor apartment that is causing damage to a lower apartment. Must the owner of the upper floor pay to have the leak fixed?
Short Answer: The Rama rules that the owner of the top apartment is obligated to fix the leak where there is a lot of water seeping into the lower apartment. However, there are many other factors to consider, including any document setting forth maintenance provisions for the building.
Explanation:
I. The Background
The Gemara recounts a story where the plaster broke in a two-story, two-family dwelling, causing water to pour into the lower apartment every time the top inhabitant washed his hands. Who is responsible to pay the cost to fix the plaster? Rav Chiya bar Aba held that the top inhabitant was obligated, while Rav Ilai held the bottom inhabitant was obligated to pay.
The Gemara connects this machlokes to a similar machlokes between Rabbi Yosi and the Chachamim by a tree of one person that was damaging the pit of another person. The Chachamim hold that if the pit preceded the tree, the pit owner may chop down the tree to prevent his pit from incurring further damage (but he must pay the owner of the tree the value of the tree). It is the damager’s responsibility to ensure that his item (even in his own possession) is not causing damage to others. Rabbi Yosi disagrees and holds that even if the pit preceded the tree, the pit owner may not touch the tree. It is the victim’s responsibility to ensure that his items are not damaged. Thus, Rav Chiya holds like the Chachamim while Rav Ilai holds like Rabbi Yosi.
The Gemara later asks on Rav Ilai, who holds like Rabbi Yosi, that Rav Ashi explained that Rabbi Yosi agrees that the damager must pay where it is “giri dilei” (his own “arrows”) that causes the damage. So, too, over here by the broken plaster in the ceiling/floor, shouldn’t the top inhabitant need to pay? The Gemara answers that the water from the top did not fall directly onto the hole, but rather on a non-holed part, but rolls towards the hole and falls down. It is thus not the direct “arrows” of the top inhabitant that caused the damage.
II. Codified
The Rosh holds that we pasken like Rabbi Yosi and Rav Ilai, that the victim has the responsibility to ensure that he is not damaged. Thus, the bottom inhabitant must fix the plaster on his ceiling. However, as the Gemara concluded, the top inhabitant is obligated to pay if the water falls directly on the bottom apartment. The Rif paskens the same way.
Similarly, the Tur and the Shulchan Aruch codify the Rosh and the Rif, holding that the bottom inhabitant must pay, unless the water drips directly on top of the lower apartment without first being absorbed. Notably, the Bach cites the Rivash who holds that the top inhabitant is only obligated to pay (where it drips directly into the lower apartment) when it is his own water that is causing the damage. When it is rainwater, the top inhabitant is always exempt from payment (unless it is his roof that is broken and causing the rain to come into the top apartment).
The Rama, in addition to codifying the Rivash, holds that the top inhabitant’s payment depends on whether the water is significant or just a minor amount. The top inhabitant is only obligated to pay where there is a significant amount of water causing the damage. But this payment must be made even where the (significant) water does not fall directly into the lower apartment.
III. The Contradiction
There is a problem with the ruling of the Rama. The Rama himself, as noted by the Sma and the Shach, holds that the top inhabitant always needs to pay for repairs. Yet, here, the Rama holds that the top inhabitant is not obligated to pay for water damage caused by the rain. Neither the Sma nor the Shach provide an answer to this contradiction.
IV. Practically Speaking
The Chasam Sofer notes that the roofs in his time are different, as they are slanted and the top floor (of the apartment building) is used by all inhabitants of the building for storage or the like. Thus, the entire building is obligated to pay for the upkeep of the roof. Based on the above, the T’shuvos V’Hanhagos holds that nowadays, where the residents of the top floor of an apartment building are usually the only ones to benefit from the roof, they are fully liable to pay for any leaks in the roof.
Interestingly, the Piskei Din L’Rabbanim has a practical application of the Chasam Sofer. When there is a water heater on the roof, and there is a leak in the roof, all inhabitants must chip in for roof maintenance, as they all use the roof.
In terms of leaks from the top floor to the lower floor, the T’shuvos V’Hanhagos explains that the Rama would hold that it depends on the frequency and volume of the leaking water. He also cites the Shu”t HaRosh who adds that if the lower floor needs to put in significant expenditures, the top floor must pay for them. The T’shuvos V’Hanhagos notes that while no clear measure of “significant” is provided, anything that needs to be completely “replaced” is likely “significant.” Moreover, any pipe leak (where the pipe solely benefits the upper floor) is the responsibility of the upper inhabitant.
Nevertheless, the T’shuvos V’Hanhagos concludes that many of these problems are addressed in the purchase contract or governing documents of the apartment building. A Torah-based community, however, should draft the contract in accordance with halachah. Shaarei Mishpat likewise notes that dina d’malchusa dina would set the halachah here.
V. Three-Floor Apartment
The sefer Migdal Tzofim discusses a three-floor apartment building, where a small amount of water leaked from the top floor all the way to the bottom floor (through the pipes in the middle floor). The Migdal Tzofim held that even though the Rama obligates the lower floor to pay for his own damages when there is only minimal water damage, here, the top floor must pay. Since there is no way for the lower floor to stop the leak in the top floor (because they don’t share a floor/ceiling), it is the top floor’s obligation to pay the maintenance expenses.
Similarly, the Migdal Tzofim rules that the middle apartment is certainly not liable for anything, even if the owner noticed the leak but did not inform anyone about it. While he should have informed the lower floor because of “hashavas aveidah,” he is not liable to pay for his failure to inform.
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..