Question
I live in a six-story condominium with other religious Jews. The water pipe that brings water to the apartments sprung a leak between the second and third floor necessitating a change in the pipes at that place. The owners of the first and second floor apartments argue that they have no need for the repair and should not be obligated to pay a share of the cost of the repair. Are they correct?
Answer
A similar situation is discussed in the Gemara (BM 108A). The source of water was a spring that flows down from a higher place and brings water to five gardens, one lower than the next. Something happened that inhibited the flow of water. The Gemara rules that if the problem is before the stream enters the first field, the owners of all of the gardens must share in the expense of the repair since all of the gardens need the repair. However, if the problem affects only some of the gardens, then only those whose garden is affected by the problem must share in the cost of the repair.
The Gemara says that this principle in reverse also governs sewage water. In this case the sewage water flows down from the upper courtyards to the lower courtyards and then to the sewage pit. The Gemara rules that if a problem develops that affects only the upper courtyard, only its owner is required to pay for the repair. But if the problem affects the lowest courtyard, then all of the owners of the courtyards must share in the cost to repair the sewage system since all of the courtyards are affected by the problem.
The Nesivos (178, 3) derives a general principle from this Gemara: if several people have a common need then each one can force the others to share in the cost if it is not possible to rectify his own problem without rectifying the problem for everyone who is adversely affected by the situation. That explains why the owner of the upper field who repairs the stream above his property, can force the owners of the lower fields to share in his expense. The reason is because all of the others need the repair as well and if the owner of the upper field repairs the system all will benefit from the repair.
He explains that this principle also explains why the Gemara (BB 7) rules that each of a town's residents can force the others to share in the cost of building a protective wall around the town. Again, the reason is because all of the town's residents need this wall and if one resident builds the wall all will benefit from it.
Based on the above, the residents of the lower floors who do not need the repair are justified in their refusal to pay their share in the cost of the repair.
However, the situation today is not the same as it was in the time of the Gemara. Now, all the owners of the apartments in the condominium are joint owners of any part of the property that is not private property. This includes the roof, the common area around the building and the water and sewage systems. Therefore, we have to examine the laws governing property that is commonly owned to determine if owners of common property who do not need the repair can refuse to pay their share in a repair of a problem that does not affect them.
A similar issue that was asked to the Minchas Yitzchok (7, 126) concerned repairs that needed to be done to the roof of a condominium. The basis for the question was the ruling of the SA (Ramo 164, 1) that in the case of a multi-story building only the one who owns the top floor is required to pay for fixing the roof. The question was whether nowadays as well one who lives on a lower floor may refuse to pay for repairs to the roof.
The Minchas Yitzchok gives a number of reasons why nowadays he is required to pay for the repairs, two of which apply to your situation as well. One argument he gives is based on a general principle that was established by the Terumas Hadeshen (1, 342), and which is ruled by the Ramo (163, 3). He was asked about taxes that the Jewish community imposed on the residents. He ruled that any custom that was accepted, regardless if it was established by the authorities or rabbis or just came into practice, is binding on all of the members of the community even if it is not in accordance with the monetary laws of the Gemara.
He explains that the reason this is true, even though generally a custom that was not established by the local governing authorities does not override the laws of the Gemara, is that it is in the best interest of all to just follow the custom because otherwise there will be numerous squabbles and dinei Torah. Since people do not want this to occur, Chazal understood that people willingly waive their Torah rights for the sake of communal peace. Therefore, in order to decide disputes that concern the community, the decisive factor is not what it says in SA but the established and known custom.
Moreover, it is clear that the Terumas Hadeshen's rule applies even to issues that do not affect the entire community but even those that affect any group of individuals who joined together for their common benefit. This can be proven from the Terumas Hadeshen himself since he cites as proof, rulings of the Gemara that in issues concerning porters, the practices of the porters are legally binding on all porters and the same is true for sailors.
It is noteworthy that Rav Moshe Feinstein applies this to union rules since the unions (at least then) represented the majority of workers in a trade (e.g., auto workers).
The Minchas Yitzchok argued that the same is true for residents of a condominium concerning common issues that affect the residents of the condominium. He says that the reasoning of the Terumas Hadeshen applies here as well since there are many issues that concern the residents of a condominium and if we do not follow customary practice many disputes will arise.
Therefore, since the common practice is that all of those who own apartments that are situated under the roof that requires repair, pay for the repair, even though that is not the ruling of the Gemara, people must abide by the custom.
This ruling applies to your situation as well since your issue is one of the issues that concern residents of a condominium. Since the custom is that all those who use a water pipe pay for its repair even though this is not the Torah law, nevertheless the law is that custom overrides the laws of the Gemara and even those who reside below the leak must participate in the cost of the repair.
The Minchas Yitzchok gives a second reason to follow custom in the case of a condominium. As we mentioned earlier, the residents of a condominium are joint owners of the common property which includes roofs and water pipes. Therefore, the laws governing issues concerning the common property are the laws of partnerships.
The Minchas Yitzchok cites a comment of the Sema (176, 31) to establish his second reason. The SA (176, 9) rules that a joint owner may not take something that is jointly owned, for himself.. For example, sons who are joint owners of their parents' estate may not use money from the estate to buy themselves clothing before division of the assets. Nevertheless, SA rules that if some of the brothers did use assets belonging to the estate to buy themselves clothing, we only deduct from their portion of the estate when it is divided-up, the value of the clothing at the time of the division of the estate. If the clothes are worn-out then, we deduct nothing. Even though this ruling seems illogical, the reason is because Chazal understood that since the others did not raise an objection, they probably acquiesced to their brother's use of the joint property.
The Ramo comments that SA's ruling that custom prevails applies to other partnerships as well besides an estate that is jointly owned. The Sema explains that the reason is that we assume that when people join together to form a partnership they intend to conduct their partnership in accordance with the custom.
We note that there is an important difference between this reason and the first reason. Whereas the first reason is that custom overrides the law, this reason says that the custom is the law in partnership law. This reason applies in your case as well since the pipes are jointly owned.
In conclusion: Since the custom is that all those who use any part of a water pipe pay for all repairs to the pipe, including even those who live below the leak, the owners of the first and second floor apartments must pay their share of the cost to repair the water pipe.
