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Dealing with Loud or Inconvenient Neighbors / Adapted by Rabbi Ariel Ovadia
Can One Object to Noisy Neighbors?
The Cohen family enjoyed living in their apartment on a quiet residential block. One day, a new family, the Levy’s, moved in to the apartment upstairs. The Cohen’s quickly realized that life was going to be a little different from now on. Firstly, the Levy’s had decided to open a small store and were selling things from their apartment. There was a constant flow of traffic on the staircase, as customers came in and out. The noise and inconvenience from the Levy’s store was causing a big disturbance in the neighborhood.
Furthermore, every night at 3 o’clock in the morning, the Levy’s six-week old baby woke up, wailing loudly and waking all of the neighbors.
Is there any Halachic recourse for the Cohen’s and their neighbors to prevent the Levy’s from making so much noise?
The Seeming Contradiction in the Mishna
In the times of the Mishna, every family had their own house, which was built off a central courtyard – a Hatzer. The courtyards led into the Mavoy, an alleyway, which then led into the main road.
The commentaries grapple with the explanation of the following Mishna in Bava Batra[1]: first it states that members of a Hatzer can object to the opening of a store in one of the homes, as the traffic and noise create a disturbance in the Hatzer – their shared space. Yet, in the end of the Mishna, it says that one has the right to manufacture articles – in his own home – and then transport them to the main shopping area to sell, and the neighbors cannot object to the noise of the banging hammers or grindstones.
Why is there a distinction between the beginning of the Mishna and the end? In the one case, the neighbors may find the noise objectionable, whereas in the other, they just have to live with it?
Rambam’s Approach: The Limits of a Hazaka
The Rambam distinguishes between one with a pre-established right and one coming to set up shop for the first time. Neighbors can object to any unusual noise which is made in the Hatzer, if this has never been done before. However, our Mishna is discussing a person who has been making disturbing noises for a while, thus earning a Hazaka. A Hazaka is implied permission from the neighbors to continue engaging in these noise-making activities, based on their lack of objection when the problem had begun.
What then is the difference between the first and the last case in the Mishna? Some Mefarshim distinguish between noise caused by the Ba’al HaBayit and noise caused by the customers. A shop owner may earn a Hazaka for noise he causes himself – such as the hammer-banging – despite neighbors’ objections. Whereas noise coming from customers coming in and out. Customers can never earn a Hazakah, because they are not a specific person.
A Hazaka on a Significant Disturbance
Elsewhere, the Rambam rules that some disturbances never earn a Hazaka. One example would be the odor of a bathroom or thick smoke coming from a furnace. Even if this disturbance has been going on for a long time without protest, the neighbors always have the right to object. The Rambam explains that this is because these types of damages are constant and very significant, therefore no one can establish a Hazaka – a no-protest status – over them.
Accordingly, the Rambam writes that opening a store with a constant flow of customers is considered to be a damage comparable to the unpleasant odor of bathroom, and therefore, one can never get a Hazaka over it. However, a homeowner creating noise in his own home can earn a Hazaka if the neighbors did not originally object, granting him the perpetual right to continue with his activities.
The Other Rishonim’s Approach: The Right to Private Activities in One’s Home
Most Rishonim however, including the Ramban, the Rashba, and the Ritva, explain the Mishna differently. They understand that the Mishna is referring to the very first time one makes noise, before earning a Hazaka. That is why, in the beginning of the Mishna, the neighbors can object to the opening of the shop. Nevertheless, in the latter case, the neighbors may not object because the noise is coming from activities done in one’s private home. A homeowner is entitled to use their home for whichever purpose they want.
In the first example, opening a store in one’s home results in customers using the Hatzer, which is public property. Because the neighbors are all partners in the Hatzer, they can object to anyone who uses the Hatzer in a way that disturbs them.
Not all Rishonim agree as to what exactly is the disturbance that customers create in the Hatzer. Some Rishonim say the problem is the noise of customers coming in and out. Others maintain that the problem is the general traffic and confusion of people crossing the Hatzer, which disturbs the neighbors’ privacy and limits their use of the Hatzer.
How Does a Mavoy Differ from a Hatzer?
The Poskim note that this Mishna is only referring to disturbances caused in a Hatzer – a courtyard/ The Hatzerot of that time had an exit to a Mavoy, the alleyway which led to the main road. The Mavoy is that it is a semi-public street, slightly removed from the dwellers of the Hatzerot.
With regards to crating disturbances in a Mavoy there is a dispute in the Poskim. According to the Shulhan Aruch a Mavoy has the same status as a Hatzer. The Rama seems to hold that a Mavoy is different than a Hatzer.
Today’s Apartment Buildings
This disagreement can have a major impact on today’s apartment buildings: is the stairwell considered a Hatzer? What about the hallway which leads to private apartments?
Some contemporary Poskim maintain that the stairs and hallways have a din of a Hatzer, while others contend, that although these areas are under the joint ownership of the neighbors, they are still less private than the Hatzer of the times of the Mishna. Therefore, according to the Rama, who distinguishes between a Mavoy and a Hatzer, one cannot object if a person invites a lot of people to his apartment, and creates noise or traffic in the corridor.
The final Halacha may depend on the exact circumstances and setup of the building, as well as the amount of traffic that goes through it.
The Private Bar
The Hattam Sofer had a mehutan (consuegro) who was asked the following question: a man living in an apartment building wanted to open a small drink parlor in his home. He would invite customers to sit with an alcoholic beverage and relax in his apartment, similar to a bar in our times. The neighbors complained that the drink parlor was bringing clients through the Hatzer and creating noise, and inquired whether they can object to the opening of the bar in the apartment.
The rabbi claimed that – aside from the noise issue – according to most Rishonim, there is also a problem of the nuisance of traffic in a Hatzer. Therefore, he claimed, even if we were to say that noise is only an issue at night, because it disturbs the neighbors sleep – as it would seem from the Mishna – and this parlor may be opened only during the day, nevertheless, the traffic is also a disturbance and it applies during the day as well.
Nevertheless, the rabbi had his reservations, because it may be that part of the reason why the Mishna permitted such activities was because Jews in that time were limited in their ability to make a living. Perhaps in our day the rules would be more in favor of the neighbors. Thus he turned over the question to the Hattam Sofer for a ruling.
The Hattam Sofer’s Response
The Hattam Sofer replied with a number of points. He first asserted that noise is not considered to be a disturbance only at night. Noise is a disturbance during the day as well, distracting people from concentrating on their household tasks, and disturbing those who want to take a nap as well and children and babies may need to sleep during the day. This is in addition to the general traffic problem which is always a nuisance to the people in the Hatzer.
Regarding the issue of preventing a person from making a Parnassa (livelihood), the Hattam Sofer referenced the Mishna which states that if a person wants to teach children Torah, one cannot object because it is a special Mitzva. Although there is a Mitzva to provide Parnassa, it is not incumbent upon the other neighbors to make sure that he has a Parnassa, and therefore, they don’t need to suffer on behalf of his Parnassa.
Still, the Hattam Sofer writes that there may be a reason to allow this man to open the drink parlor, based on the opinion of the Ralbag. The Ralbag’s opinion is that the difference between the beginning and end of the aforementioned Mishna in Bava Batra is that the neighbors have the right to object to a store operating in a home, because of the noise and traffic that is created in the Hatzer. However, in the end of the Mishna, the homeowner is selling his artifacts in the marketplace.
The Ralbag explains that in those days, there were no other workplaces where one could manufacture artifacts to sell in the marketplace other than one’s own home! Since there was nowhere else to do this activity, it becomes a normal household activity to which any homeowner is entitled.
According to this opinion, the Hattam Sofer suggests that the man should be allowed to open a drink parlor in his home, because in those times, there was no other venue to operate this kind of business. Therefore, according to the Ralbag, the neighbors cannot object.
This, however, is only if we follow the Ralbag’s understanding of the Mishna, which, surprisingly, the Hattam Sofer does. However, most of the Rishonim do not understand it this way.
Exceptions and Normal Applications to Noisy Neighbors
In a related issue, the Mishna refers to the neighbors’ inability to object to the noise of the hammer-banging. The Shulhan Aruch rules that there are circumstances where this does not apply. If a sick person is suffering from the noise, then he has the right to object to it. Although the Rishonim maintain that a homeowner is entitled to make noise in his own home, this is not if it causes another neighbor to become ill or disturbs an ill neighbor.
It would seem logical that this would include noise that would disturb people’s sleep at night. Since everyone needs to sleep at night, it would seem that they would have the rights of an ill neighbor to object to such noise.
The Hazon Ish adds another important point: these Halachot only apply to opening a business or making artifacts. However, neighbors cannot object under any circumstances to any noise which is part of normal living. If a baby wakes up in middle of the night, the neighbors cannot complain about it. This applies even if the neighbor is ill or highly sensitive. The same is true for turning on the tap, running a bath, vaccuming, or all other normal activities.
In Conclusion
So, in our original example, do the Cohen family and their disgruntled neighbors have any options regarding the noisy Levy’s?
The Halacha would depend if the stairwell and corridor are regarded as a Hatzer (an isolated courtyard) or a Mavoy (a semi-private alleyway). If the shared areas are regarded as a Hatzer, then, according to most opinions, the neighbors can object to the traffic and noise caused by the customers. According to the Rambam, they would also never be able to establish a Hazaka.
However, there is nothing the Cohen’s or anyone can do about the baby screaming in middle of the night. Of course, the Levy’s should try to be as considerate as possible and try to minimize the disturbance to their neighbors, but nevertheless they may lead a normal life and not hamper any noise that is a natural product of it.
[1] כ’ ע”ב