Moshe owned a penthouse in a condominium, with a spacious porch that overlooked the ocean. Below him lived Yehuda, whose living room was situated directly under Moshe’s porch.
Toward the end of the winter, after a heavy snowstorm, Yehuda began seeing moisture on his ceiling. As the snow melted, the ceiling began dripping. The paint peeled in a few places, and after a few days there were signs of mildew.
Yehuda called Moshe. “The ceiling in my apartment leaked a few days ago,” he said. “I think the water came from your porch.”
Moshe immediately came down. “When the house was built, a professional roofer sealed the porch,” he said.
“It’s possible that the sealant is getting old and needs to be redone,” Yehuda said.
“It could be that the sealant is fine and that the very heavy rain and snow was just too much,” Moshe replied.
“Either way,” said Yehuda, “now I have to fix my ceiling.”
The neighbors approached Rabbi Dayan to ask him who should pay for painting the ceiling.
After considering the question, Rabbi Dayan said, “The Gemara [Bava Metzia 117a] discusses a tenant who washes his hand with the water that leaks on a tenant below him. There is a dispute over who has to fix the cracks through which the water leaked, and the answer depends on the degree of the cracks [Choshen Mishpat 155:4].
“In a case similar to ours, where an extending roof serves as a ceiling to a tenant below, the Rivash [responsum #517] differentiates between water poured by the upper tenant, for which he is responsible when the cracks are significant, and rain, which falls on its own and for which the tenant who owns the roof is not responsible at all [Rema ibid.].
“Acharonim note that this ruling seemingly contradicts other rulings of the Rashba and Rosh that state that an upper tenant is responsible for all repairs of a roof and that a person may not drain rain from his roof in a way that damages another [Sma 155:15; Rema 153:9, 155:10; 164:1].
“Some differentiate between the cases, arguing that the Rivash was talking about a roof that was inherently intact but leaks when the rain was excessive. If the roof had been faulty, though, the owner would had to repair it even if the damage had resulted from rain [Bach 155:7; Be’er Heitev 155:13; Pischei Choshen, Nezikin 13:6].
“Others explain that although a person is not liable for rain damage, if tenants are partners, they have mutual responsibilities and are bound by the rules of ‘common practice.’ Common practice dictates that an upper tenant is responsible for the roof and the owner of a penthouse is responsible to keep his porch properly sealed [Nesivos 164:2; Chasam Sofer 155:4].
“Thus,” conclude Rabbi Dayan, “if the porch sealant is intact, Moshe isn’t liable for the damage, but he is responsible to repair the sealant if it’s faulty” [see Emek Hamishpat, Hilchos Shechinim #29].
