Sukkot Reuters 19.9.2010
Haredi man inspecting a myrtle branch for blemishes at a market in Bnei Brak near Tel Aviv September 19, 2010. Photo by Reuters
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Do tenants have the right to build a sukkah - a temporary structure erected to celebrate the Sukkot holiday - in the courtyard of an apartment building over the objections of the building's owners?

According to Tel Aviv Magistrate's Court Judge Idit Berkowitz, the answer is yes: Yesterday, she issued an interim injunction ordering the owners of a Tel Aviv building to let the tenants build a sukkah in the courtyard, even though the courtyard is the owners' private property.

"Building a sukkah, which by nature is temporary, clearly constitutes 'reasonable use' appropriate to the time and place, and in no way negates the similar rights of other residents," she wrote. "Building a sukkah does not infringe on the respondents' property rights."

The case itself is still ongoing; Berkowitz's injunction relates only to the Sukkot holiday, which starts tomorrow night. Nevertheless, it is a clear victory for the tenants.

Michael and Or-Bracha Marsa, a husband and wife, moved into the key-money apartment in downtown Tel Aviv three years ago. The building is owned by Nili and Moshe Weinberg; the latter is a well-known attorney.

Two years ago, the Marsas built a sukkah on the roof, with the Weinbergs' consent, just as other families had done before them for decades. But last year, when the Marsas again sought permission to build the sukkah, the Weinbergs refused - and locked the entrance to the roof to enforce their decree.

Eventually, the Weinbergs agreed to let them build the sukkah in the courtyard. But after the holiday ended last year, they sent a letter to the Marsas saying that this year, they would not allow a sukkah anywhere in the building.

The Weinbergs offered two reasons: It disturbed the other tenants and it damaged the garden.

Michael Marsa admits that he indeed lopped off "one or two branches" of a large tree to make room for the sukkah; the Weinbergs' claim about the neighbors has yet to be proven.

The Marsas turned to the court after they saw the Weinbergs standing firm even as the holiday approached. In response to the suit, the Weinbergs argued that they owned all the space in the building aside from the actual apartments, and therefore had a right to veto a sukkah on their property.

But Berkowitz said the question was not who owned the property, but whether the owners could be forced to let their tenants build a sukkah on it. And in her view, precedents allow tenants to make "customary and appropriate" use of public spaces in apartment buildings.

Tenants, she noted, help pay for the maintenance of these spaces, which clearly indicates that they have the right to use them.

Moreover, she wrote, one look at the Marsas is enough to see that they are Orthodox Jews, meaning they would obviously want to build a sukkah for the holiday. So if the Weinbergs objected, they should have made this clear before signing a long-term contract with the new tenants.

Berkowitz also cited the testimony of one tenant who said a sukkah had been built in the building every Sukkot for decades.

"The sukkah's necessity to the plaintiffs, as observant Jews, is very great, while the harm to the respondents' rights, if it exists at all, is minuscule to negligible," given that the sukkah exists only for eight days and is dismantled thereafter, she concluded.

However, the injunction did restrict the sukkah's size. Berkowitz also ordered the Marsas to keep the noise level down during hours when people are likely to be resting and to dismantle the sukkah promptly on October 1.