Siman 164

A house and an upper story belonging to two partners, or heirs who divided—this one took the house and this one the upper story—any damage that occurs in the walls from the ceiling and below, the homeowner is obligated to repair. If he does not wish to repair, the owner of the upper story compels him by whatever means he can, to seize his assets or by other matters. However, he has no remedy to go down and dwell in the house as in section 5, for since the walls are damaged, it is not fit for dwelling [Sma]. From the ceiling and above, the owner of the upper story repairs if he wishes, and this does not concern the homeowner, unless there is danger to the house if the walls of the upper story are not repaired and it falls upon the house; in that case, the homeowner compels the owner of the upper story to repair them [Taz]. The ceiling itself belongs to the homeowner and the expenses of its repair are upon him, and the plaster-flooring upon it belongs to the owner of the upper story and the expense of its repair is upon him. For the owner of the upper story says to the homeowner: just as you stand on your ground, so too establish me on my ground, which is the ceiling [Tur]. And just as I repair the roof above me, so must you repair the roof above you, and let us both be equal in the expense [Sma]. But the plaster-flooring is upon the owner of the upper story to repair. And even though regarding one who rents an upper story from his fellow, the lessor must also provide the plaster-flooring, as written in siman 314, because plaster-flooring is for the strengthening of the ceiling [according to the Rabbis of Rabbi Yehuda, Bava Metzia 116a], nevertheless, regarding partners, the plaster-flooring belongs to the owner of the upper story [Maggid Mishneh], not like the one who disagrees on this [see Levush who contradicts what he himself wrote there]. And they did not impose it upon the homeowner since it is also made to level the floor for the benefit of the upper occupant; therefore, it is upon him to repair it. Furthermore, in this the division is proper, for just as the ground of the lower occupant belongs to both of them, so too the ground of the upper occupant belongs to both of them—to this one the ceiling and to this one the plaster-flooring [and the difficulty of the Sma is settled; and what he wrote that it is for leveling the holes requires further study, for the author rules there like the Rabbis]. And some say that the homeowner is not obligated to repair the ceiling, but rather the owner of the upper story shall repair it, for presumably with this intent he took the upper story: that he himself would repair his ground, for he knows that the homeowner is not concerned for his ceiling because the roof of the upper story protects him from the rain, as the roof is subordinated to both of them. Therefore, certainly when he took the upper story, he resolved in his mind to repair the ground of his upper story himself [Tur]. Our teacher, the Rema, decided in accordance with this opinion. And all the needs of the roof, the owner of the upper story is obligated to repair as well. And this is specifically regarding two partners, but regarding one who rents an upper story, the ceiling is upon the lessor to repair and the plaster-flooring is upon the lessee to repair according to this opinion, which holds that the plaster-flooring is not for strengthening the ceiling but rather for leveling the holes, and it is like plastering his roof, which was explained there that the lessee must do as it is not the work of a craftsman [like Rabbi Yehuda ibid., and their dispute is regarding a lessee, for regarding partners everything is upon the upper occupant as the Rosh wrote; and I wonder at the Rema that he did not emend this in siman 314].

If the beams of the house became loose and descended into the airspace of the house, if they reached within the lower ten tefachim where the owner of the aliyah has no domain, the owner of the house may demolish the ceiling, for it is upon him to build it according to the first opinion, and the owner of the aliyah cannot prevent him. But if they did not reach the lower ten tefachim, the owner of the aliyah can prevent him, for he may say: "I do not wish to leave my aliyah since I am able to dwell in it." And even if the owner of the house says to him, "I will rent you a place to dwell in until I repair the ceiling," and even if he only uses it for wood, he can say to him: "It is not my will to trouble myself from place to place so that you may repair your house." And if they stipulated between them that whenever the usage of the house is spoiled due to the loosening of the beams he shall have permission to repair, there is another measure for this: if there remains in the height of the house enough so that a person may take a medium-sized bundle on his head and enter with it under these beams that have bent, he may not demolish it, for it is still fit for usage. But if he cannot enter with this bundle under the beams until he bows his head, he may demolish, repair, and build, and the owner of the aliyah cannot prevent him. All of this is according to the first opinion, but according to the "there are those who say," when the beams are spoiled as has been explained, the owner of the aliyah alone is obligated to repair. And if the beams did not become loose, but rather the ceiling was lowered because the walls of the house sank into the earth and the ceiling reached to less than ten tefachim, the expense of raising it is upon both of them according to all opinions; since the walls of the house and the aliyah descended from their place, it is upon both of them to repair, for the damage is not in the beams. And if the beams are still above ten, the upper one can prevent it as has been explained, and the condition of the law is also as I have written. And similarly, if the foundations upon which the house stands were spoiled, it is upon both of them to repair it, for behold, the aliyah also stands upon them, and so it is explained in the Yerushalmi. And a wall that is between Reuven and Shimon and it belongs to one of them, he may demolish it when he wishes and the second cannot protest, and it was explained in siman 154, see there. And if the wall is dilapidated, even though it belongs to both of them, one of them may demolish it and the second is obligated to give his portion, for it is a mitzvah to demolish a dilapidated wall.

If both the house and the upper story fell, they both divide the wood, the stones, and the earth; and according to how much one is higher, he takes more. If some of the stones were broken, they see which ones were likely to be broken, for if it fell far away, the upper ones break more, and if it fell straight down, the lower ones break more, and through this they can know whose are the broken ones. And if they do not know how it fell, such as if it fell at night and they cleared the stones from there, they divide the whole stones and the broken ones. And even if they are in the domain of one of them, he is not considered the possessor, for partners are not fastidious with one another, and it is considered as if they are placed in the domain of both of them [Tur].

If one of them recognizes some of the stones and they are whole, and the second admits to him regarding all of them or some of them, and regarding the rest he says "I do not know," he takes them even if they are larger and better than all the stones. This is because the one who admits to a portion and regarding the rest says "I do not know" becomes obligated to take an oath, as he is one who admits to a portion (modeh b'miktzat) and is unable to swear since he says "I do not know," and thus he pays, as written in siman 75. And even though it was explained there that we only say this in a place where he should have known, see there, here too he should have known, for a person is accustomed to pay attention to his stones to recognize them [Sma]. Nevertheless, the second does not take broken ones corresponding to them, for who knows, perhaps the second one's stones also remained whole in this number. Therefore, the second also takes whole ones corresponding to them according to the number that the first took, and there is no practical difference except in that these are better than those, and what remains afterward they shall divide equally. However, if there are not enough whole ones according to the number the first took, the second loses (ibid.). All of this is when the second damaged some of the stones that the first is to take and is obligated to pay him in money, for otherwise it would be "here it is before you" (heilech) and there would be no obligation of an oath for admitting to a portion (Netivot HaMishpat). And if the second denies it and says "the stones are mine," they shall divide. And if the second says "they belong to both of us" and this one says "they are all mine," this one takes three parts and that one a quarter, according to the law of two people clutching a garment in siman 138, for their presumptive possession is equal. And in this case, the law of "whoever is stronger prevails" (kol d'alim gavar) does not apply, since there is a "monetary claim" (drara d'mamona) here, for even without their claims the beit din has a doubt, and therefore we do not judge in such a case "whoever is stronger prevails," as is explained there. And they can administer an oath of inducement (hesset) to one another (it appears to me).

If the owner of the upper story said to the owner of the lower story to build his house so that he may build his upper story on top of it, and he does not want to, the owner of the upper story builds the house as it was and dwells within it until the owner of the lower story returns all his expenses to him, and afterward he leaves and builds his upper story if he wishes. This is not ribbit when he receives his money for having dwelt there until now in exchange for his money, since the land is also subordinated to him, he won the right by law to build and to dwell there when his partner is not interested; and he does not dwell there because of his money, but rather that automatically when he returns his money to him, his subordination returned to the upper story. Also, one does not compel the owner of the lower story to build his house as in section 1, since it is possible for the owner of the upper story to dwell in the house, which is not the case there. And if neither of them is able to build and they divide the land, the owner of the upper story takes a third of the land and the owner of the lower story two-thirds, for thus the sages estimated that an upper story causes a loss of a third of the strength of the house; for example, if without the upper story it would stand for thirty years, if there is an upper story on top of it, it would only stand for twenty years. And so too if they sell the land, they divide the proceeds, two parts to this one and one part to that one. And if one wants to buy his fellow's portion according to this assessment, he may take it, and the second cannot sell to another, for behold he is his partner and a bar metzra. But the law of "gud o igud" does not apply here, since there is enough to divide as I wrote in siman 171. And if one wants to sell his portion and the second does not want to sell his own nor to take the portion of the second, he sells it to another and the buyer will be a partner in his place with the second.

If the homeowner desired to rebuild his house, he may build it as it was. And if he came to make changes to the walls: if he strengthened them and increased their width more than what they were, we listen to him. But if he desired to diminish their width or to reduce their strength, such as if they were previously of stone and now he desires to make them of bricks or the like, we do not listen to him. And likewise, if he came to change the ceiling with beams that are heavier and stronger than what they were, we listen to him; but to reduce from what they were, we do not listen to him. And likewise, if he came to increase the windows from what they were and the walls would be weakened, or if he came to add to the height of the house from what it was and there would be an extra burden upon the owner of the upper story to ascend, we do not listen to him. But if he desired to diminish the windows or the height, we listen to him.

And so too, the owner of the upper story builds his upper story as it was if he wishes. And if he comes to change the walls to widen them and strengthen them more than they were, they do not listen to him because he increases the weight upon the lower wall; but to reduce them, they listen to him. And so too regarding the beams of the upper ceiling, if he changed them to lighter ones than they were, they listen to him, but for heavier ones than them, they do not listen to him. And if he increased the windows or reduced the height of the upper story, they listen to him; but to reduce the windows and to increase the height, they do not listen to him. However, some say that as long as the concern is only regarding the weight of the building, if the custom there was that this one builds with cedars and this one with sycamores and anything similar to this, they follow the custom and each one can change and there is no concern in this. And only to change the thickness of the wall they cannot, for this is the primary support of the building, but regarding weight there is no concern unless they do not practice at all that which this one comes to change. And some say further that all this is when they purchased or inherited this house and this upper story, but when they built from ownerless property or purchased land and this one built a house and this one an upper story [the Rosh], they can change, for behold, initially if he wanted he could have built whatever he wished, and therefore even now they can change, and the second party does not have a claim of chazakah, for it is like a chazakah that is not accompanied by a claim. And this opinion holds that for all chazakahs we require three years and a claim, as written at the beginning of siman 153 [the Gra].

There is one who says that specifically regarding a house and an upper story, the owner of the upper story may not add weight because each part is designated for one individual alone, and he has only an encumbrance upon the house that his upper story shall stand upon its walls. However, regarding a wall between two courtyards where the space and the stones belong to both of them, each one may build and heighten and add weight as he desires, provided that he does not heighten it so much that the structure will be damaged according to the assessment of the experts. And there is one who says that this applies in a place where it is not the custom of partners to be particular about this, but if they are accustomed to being particular, he may prevent him; and it was explained in siman 157, see there.