By the Bais Hora'ah
Q: My ceiling and walls suffered water damage, so I called a professional to identify the source of the problem. He found that my upstairs neighbor’s drainpipe was leaking, causing water to spill onto my ceiling and seep into my walls. After he fixed the pipe, I approached my neighbor and asked him to reimburse me for the cost of the repair. My neighbor claims that according to Halachah, he is not required to pay for the repair. Is he correct?
A: Although a simple perusal of the Halachah in the Gemara and Poskim might lead one to believe that your neighbor is correct, in reality he is required to pay for the repair.
The Gemara (Bava Metzia 117a) rules according to Rabi Yosi, who maintains that the general rules of dealing with neighbors requires each neighbor to ensure that his possessions will not be damaged by his counterpart, except in cases in which the mazik is inflicting damage with his own body, in which case we obligate the mazik to stop causing that damage.
Accordingly, if an upstairs neighbor pours water directly onto his downstairs neighbor’s property, he is liable for the damage, because he has inflicted the damage directly. If, however, he pours water onto his own floor and the water seeps through the floor and then into his neighbor’s house, his direct action ended when he stopped pouring the water. Since the seeping water is not his direct action he is permitted to pour water onto his floor, and the downstairs neighbor must take measures to protect his property from damage, even though it is obvious that the mazik’s actions are indirectly causing the damage (Shulchan Aruch, Choshen Mishpat 155:4).
It would seem, then, that since your neighbor is not directly causing the damage – rather, his faulty pipe is leaking slowly into your house – it would be your responsibility to repair the pipe in order to protect your property.
But there are several reasons why your neighbor is responsible for the repair.
- The Poskim limit the obligation to protect one’s property to cases in which it would be impossible for the upstairs neighbor to prevent the damage unless he didn’t use water altogether, and the downstairs neighbor can easily prevent the damage by installing a concrete ceiling that would absorb the water. (In earlier times, people used much less water in their homes, so a cement ceiling between the two properties would have been enough to prevent water damage to the downstairs property.)
If the downstairs neighbor cannot prevent the damage through a minimal investment, but would have to incur a large expense to prevent the leak, and the upstairs neighbor can easily repair the problem, the upstairs neighbor would be responsible to prevent the damage (see Nesivos 155:3, based on Shulchan Aruch 155:20). If that is true in the case of the installation of a ceiling between the two floors, which benefits the downstairs neighbor as well, then it is certainly true in your case, in which your upstairs neighbor is the one who truly benefits from the repair to the broken pipe (see Mishpetei Hachoshen p.185).
- The reason we generally require a person to protect his own property from damage is that we cannot limit his neighbor from standard use of his property. In earlier times it was considered an ordinary practice to wash one’s hands directly onto the floor, where it was eventually absorbed. Halachah therefore placed the burden on the downstairs neighbor to prevent that ordinary water usage from damaging his property.
Nowadays, norms have changed; we pour water only onto surfaces or receptacles that have a drainage system, not directly onto the floor to be absorbed (see Chazon Ish, Bava Basra 14:13). We therefore expect an upstairs neighbor to ensure that his water is not leaking into his neighbor’s house. Furthermore, when someone uses a lot of water, as is the practice nowadays, we expect him to repair a faulty pipe (see Rema 155:4 and Aruch Hashulchan 6).
- Since the generally accepted practice in shared-living structures is that the owner of a faulty pipe is responsible for fixing it (unless it is a shared pipe, in which case the cost is split between all the residents), the residents are considered to have agreed at the outset that the upstairs neighbor would fix the pipe if it broke. Even if they do not have an official contract stating as such, they agreed to live in the structure according to local custom.
In summation, although your neighbor was correct that Halachah would ostensibly exempt him from paying for the repairs, in reality he is responsible for the repair to the leaky pipe.