Mr. Poupko owned an apartment in a building that was divided into two entrances. Each side of the building had its own sewage line.
One day, Mr. Poupko found that his toilets and sinks were backing up. He called in a plumber to check what the problem was.
“There is a serious blockage in the sewer pipe somewhat below your apartment,” the plumber said. “It’s not easy to get to, and the repair will cost a considerable sum. Who’s going to pay for it?”
The building’s management committee agreed to advance the money in the meantime, but a dispute arose among the apartment owners about who should ultimately bear the cost of the repair.
Mr. Poupko felt that all owners, from both sides of the building, should contribute. “The sewage line serves the building in general, and is considered joint property,” he reasoned.
Someone on the ground floor, though, argued that he shouldn’t have to pay since the clog two floors above didn’t affect him. “As far as I was concerned,” he said, “you didn’t have to fix the blockage at all!”
Meanwhile, a person from the other side of the building expressed surprise that anyone would even think that owners on his side of the building should pay. “We have nothing to do with that sewage line!” he said.
The head of the management committee decided to turn to Rabbi Dayan, who considered the question and said:
“The apartment owners are partners in the building and in usage of the sewage line. The Gemara [Bava Metzia 108:1] addresses a similar case. It states that if a water system needs to be repaired, whoever gains from the repair has to participate in the cost. Thus, if a few fields share a stream, which became clogged, those downstream from the clog have to pay for the repair whereas those upstream from the clog don’t have to since the clog doesn’t affect them.
“Conversely, if the drainage trench from a few courtyards becomes clogged, those upstream from the clog have to pay for the repair since their yards won’t drain otherwise, whereas those downstream from the clog don’t have to pay since the clog doesn’t affect their drainage [Choshen Mishpat 161:6].
“Based on this ruling, the owners of the apartments above the blockage should have to contribute to the clearing of the sewage line, while the owners of the apartments below it should be exempt.
“Nonetheless, nowadays most authorities require all those associated with a sewage line to share in the cost of a repair. They rule this way because the pipe – unlike the stream or drainage trench in the Gemara, which is ownerless – is considered joint property. Furthermore, a clogged pipe can affect the tenants below the clog due to gas build-up in the pipe. Sharing in the cost is also the accepted common practice, which is binding, and required according to dina d’malchusa [Pischei Choshen, Nezikin 15:39].
“Nonetheless, if the sewage line serves only one entrance to the building, the owners of the apartments on the other side are not required to participate in the cost of the repair since the pipe isn’t related to them in any way,” concluded Rabbi Dayan. “They may have to pay, though, according to dina d’malchusa or if there is an agreement among the tenants to share in the cost of all public repairs” [see Emek Hamishpat, Shecheinim #44, 52].