From the Rav’s Desk: Must one pay for the elevator condo fee [i.e. Vaad Bayit] if he always uses the stairs or lives by the ground floor

Question: [Wednesday, 8^th Adar 1, 5782]

We have a year’s long dispute in our apartment building with the building management regarding if those who live by the entrance or who only use the stairs need to contribute towards payment for the elevator maintenance and monthly electricity bill. He of course says that we have to pay, as anyone who lives in the building must contribute towards all the fees of the building. We however claim that this makes no sense and is actually stealing, as we do not make use of the elevator at all and see no reason to contribute towards its maintenance and fees if it does not benefit us and he has no right to force us to pay. What is the Halachic opinion on this matter?

Answer:

All of the residents must pay the monthly condo fee, including the monthly fee for the elevator, irrelevant to where they live in the building and irrelevant as to whether they make use of the elevator or not. This applies unless, 1) explicitly stated otherwise in the contract with the developer from whom the unit was purchased that ground floor residents are exempt from elevator fees, or 2) was agreed upon with the building management at the time of purchase of the condo that ground floor residents are exempt from elevator fees, or 3) the custom of one’s state or jurisdiction is not to require all condo owners to pay a flat fee, and rather to require each one to pay according to estimated usage, and one in truth receives zero benefit from the elevator.

Practically, to avoid any unclarity on this issue we suggest that the developers and building management set up contracts and guidelines that explicitly state their policy for ground floors playing the elevator fee, which will be agreed upon prior to a homeowner moving into the home.

Explanation:

Explanation of final ruling based on custom: The answer to the above question has two perspectives, one based on the Talmudic law, and the second based on the practical custom. Practically, the accepted custom would override the technical Talmudic law, and create the final ruling. We will first focus on this aspect of the custom which is the basis of the final ruling that we wrote above:

Unless explicitly stated otherwise in a contract with the builder or developer or building management, all of the homeowners are responsible for paying all of the building fees irrelevant of whether one makes use of a specific amenity or service that it offers. The reason for this is because in today’s times the custom amongst joint homeowners, condominiums and apartment buildings, is for all of the owners to pay the set condo fee for all of the expenses of the building irrelevant of how much benefit each homeowner received from each of the expenses, and hence, unless explicitly stated otherwise at the time of purchase of the condo, the buyer of the condo must follow the custom. This follows the general Halacha in monetary matters, which is that unless explicitly stated otherwise, all business transactions follow the custom of the community. Furthermore, although it may seem unfair for those who don’t benefit from some of the fees that they need to pay, in truth, they benefit in other ways from the fact that there are other people living in the building [i.e. lower security fees, lower cost of property, etc. etc.], and this is something that every condo owner needs to also take into account when purchasing a condo versus a home, and the indirect benefit that he receives from the other property owners.

The technical Talmudic law:

All the above discussion and ruling is only due to the current custom. If, however, there were to be no established custom in this matter, then we would need to follow the technical Talmudic ruling in this matter as codified in the Shulchan Aruch. So, the truth is that we find various sources in the Talmud and Poskim that discuss the obligation of individuals to contribute towards communal expenses, and in some cases, they are completely exempt [i.e. Beis Shaar], while in other cases they are completely obligated [i.e. Mikveh and Beis Chasnus] while in other cases they must only pay according to usage and benefit. While the matter is a bit obscure, the vast majority of Rabbanim and Dayanim agree that from the letter of the law it seems that those who do not make use of the elevator due to living on the ground floor do not have to pay, as this is not considered a communal expense but rather an expense of a private building, of which we rule that one only pays in accordance to his potential benefit. Nonetheless, some say that if he uses the elevator even on mere occasion such as to visit the upstairs neighbor then he must pay, and that if he does not live on the ground floor, then he must pay even if he chooses to always take the stairs. Furthermore, others say that in truth even those who don’t actually use the elevator do receive benefit from its existence due to the fact that it allows the building to be jointly owned, which lowers the costs of expenses, and hence they are obligated to contribute from the letter of the law and not just due to custom.

Sources: The following Poskim rule as above that due to the custom [as opposed to technical Talmudic law], practically all homeowners must pay the same flat fee for the elevator whether they use it or not: Imrei Yaakov on Admur Dinei Nizkei Mamon 8 Likkutim 19; Baruch Omer [Shraga] 37; Mishpitei Yaakov Nizkei Shecheinim 155; Harav Yaakov Yosef z”l; Rav Naftali Tzvi Morgenshtern in Beis Aaron Viyisrael 164 p. 237 and Machon Horah Umishpat 7 p. 95; Beis Vaad Letorah Givat Shmuel-Nizkei Shcheinim pp. 82-92; See regarding the law in Israel: Chok Binyanim Meshutafim and Chok Hamikarkain 57a-59a and 62; Chazon Ish Likkutim 16; Teshuvos Vehanhagos 3:456

For technical Talmudic sources in Poskim: See Michaber C.M. 161:2 based on Bava Basra 7b; that even one who does not live by the Chatzer, must participate in paying for the door and lock if he owns a home there [as he benefits that his home is guarded as a result]. However, he is not required to pay for a fence for privacy purposes [being that he does not live there and does not benefit from the privacy]; Nesivos Hamishpat ibid 2; Michaber 161:3 that we collect fees based on Mamon; Michaber C.M. 161:6 and 170:1 that a special assessment fee for repair of damage must only be paid by those who benefit from the repair; Semeh 170:1; Rama C.M. 163:3 based on Mahariy Mintz 7, that all dwellers of the city must contribute towards the development of communal buildings and their maintenance, such as a mikveh and wedding hall, even if they personally will never use it such as they are already married and have no children and are old; Smeh 163:31 that we always follow the custom in these matters and 32 that the ruling of the Rama only applies regarding communal needs and not towards private needs of individuals of which one who does not benefit from it does not need to contribute; Michaber 163:4; Chasam Sofer O.C. 193 and C.M. 167; Shevet Halevi 9:301-3 leaves this matter in question if we say there is a custom to make him pay for the elevator; Imrei Yaakov on Admur Dinei Nizkei Mamon 8 Likkutim 19 and Pischei Choshen  Nizikin 15:81 that based on the ruling of Michaber C.M. 161:2, an owner who does not live in the building does not have to pay the cleaning fee and also does not have to contribute towards the electricity bill with exception to the flat monthly fee charged by the electric company, although he must contribute towards all fees involving the maintenance of the structure of the building, and the deciding factor is all dependent on whether he receives a benefit from the expense or not; Regarding an elevator, Imrei Yaakov ibid rules that seemingly one who lives on the ground floor is exempt from paying for the elevator expenses as he does not benefit, nonetheless, he concludes that if the custom/law of the area is to require all homeowners to play the same flat condo fee, then he must do so unless explicitly stated otherwise upon purchasing the property; Mishkanos Yisrael 17:3 and 10; 18; Baruch Omer [Shraga] 37 based on the ruling of Michaber C.M. 161:6 and 170:1 rules that ideally one is exempt from paying for the electricity bill and bill of the elevator if he does not benefit from it, however, since the custom today is to require all homeowners to pay a flat fee, therefore every homeowner must pay the same flat fee irrelevant of whether he receives benefit or not, as he purchased the property with this condition in mind. Furthermore, he states that in truth one can argue that regarding the elevator, even one who lives on the ground floor sometimes benefits from the elevator if he needs to visit a neighbor on one of the upper or lower floors, and hence perhaps even from the letter of the law, irrelevant of custom, he would be required to pay; Harav Yaakov Yosef z”l rules that even the ground floor homeowner must pay towards the electricity bill and the elevator even if he never uses it, as aside for the fact that he purchased the apartment under this condition as is the custom, he also benefits from a lower property purchase price due to the fact that it is a joint building, and hence he must join in the fees of those living in the upper floors due to the benefit that they gave him by living there; Rav Naftali Tzvi Morgenshtern in Beis Aaron Viyisrael 164 p. 237 and Machon Horah Umishpat 7 p. 95 writes that from the letter of the law one who does not use the elevator [even if he uses it once in a while to go to the upstairs neighbor] is exempt from payment towards the elevator bills, although concludes that since the custom is otherwise, therefore he must pay equally like everyone else; Shaar Shlomo Choshen Mishpat 1:19 writes that this matter is a dispute amongst Rabbanim and the Batei Dinim and that in Jerusalem the custom of Rabbanim and Dayanim is to rule that even ground floor residents must pay for the elevator fees, while in Bnei Brack the custom of Rabbanim and Dayanim there is to rule that they are exempt, as in their opinion there is no set custom in this matter. However, he concludes that if in the contract signed with the building developer it says that every resident must pay an equal flat maintenance fee for the elevator, then everyone must pay even in Bnei Brak; Mishpitei Yaakov Nizkei Shecheinim 155 concludes that he must pay for the elevator fee and so is the custom of one who purchases a condo in a building, as well as that at times he or his children use the elevator to go to the neighbors who live on the upper floors, in addition to the fact that he has use of the roof of the building which requires an elevator to get to. In summary, he writes that every resident of the building must pay an equal set amount for all the fees, and that we never calculate it based on the amount of benefit received; Vaad Habayit Behalacha 5:2 [p. 152-154] concludes that from the letter of the law he must pay equally towards the elevator, but that the custom is to allow him not to pay towards the monthly electricity bill of the elevator. However, if he does not live on the ground floor or if he ever uses the elevator even on a mere occasion that he must pay; Beis Vaad Letorah Givat Shmuel-Nizkei Shcheinim pp. 82-92 that from letter of the law each resident only has to pay according to his level of benefit, although since the custom is for everyone to pay a set fee, therefore this is binding.