Levi and his family were sitting on their deck, enjoying a summer afternoon. Their house overlooked the ocean — almost. Ari’s house intervened, but they could look straight through his back yard. The children enjoyed watching the boats, while the parents would look at the sun and rippling waves.

While the family was sitting there, they saw Ari walking around the perimeter of his property with a contractor. A few days later, the contractor put poles around the edge of Ari’s property.

“What are you doing?” Levi asked Ari.

“We have no privacy,” Ari replied. “We decided to enclose it with a six-foot-high fence.”

“But that will block our view!” exclaimed Levi. “You can’t do that!”

“What do you mean?” asked Ari.

“We like to look from our deck through your property at the ocean,” replied Levi. “If you enclose your property with a fence, we’ll lose that beautiful view.”

“I understand that you enjoy the scenic view,” replied Ari, “but that doesn’t give you legal rights to our property. We’re entitled to privacy in our yard!”

“But it’s been this way for years,” argued Levi. “We’ve established a chazakah (legal status quo) to view the ocean from our house!”

“Just because it’s been that way until now doesn’t mean I can’t change it,” retorted Ari.

Levi decided to summon Ari to a din Torah before Rabbi Dayan. “For many years we have been viewing the ocean from our deck through Ari’s back yard,” began Levi. “He now wants to build a six-foot fence in his property that will block the view. May he do so?”

“You cannot restrain Ari from building a fence on his property,” answered Rabbi Dayan. “Our Sages restricted a person from building a wall directly in front of his neighbor’s window, which would block light and air from entering. However, it does not seem that they restricted blocking the view” (Pischei Teshuvah, C.M. 154:8).

“It sounds like there’s some discussion of the topic,” said Ari.

“Yes, the Gemara (B.B. 7a) discusses the case of two sons who divided their father’s estate; one received an airy building and one the garden in front of it,” explained Rabbi Dayan. “Shortly afterward, the one who received the garden built a wall in it that blocked the airy building, and litigation arose. Rashi explains that the issue was blocking light; Rabbeinu Tam explains that the issue was blocking the view of his fields.”

“What was the ruling in that case?” asked Levi. “According to Rabbeinu Tam that case sounds exactly like ours!”

“The dayan upheld the brother’s right to build the wall within his property,” replied Rabbi Dayan (C.M. 154:27). “Nonetheless, your case is not so simple.”

“Why not?” asked Ari.

“Some Rishonim imply that he was allowed to build the wall only because the other brother did not yet establish chazakah. Where a person already established chazakah to look through his neighbor’s property, Mahara Sasson maintains that Rabbeinu Tam would not allow the neighbor to block the view.

“However, Maharalbach questions this understanding of Rabbeinu Tam,” continued Rabbi Dayan. “Furthermore, he writes that even with a chazakah, a person might be able to restrain his neighbor only when he had a particular need to look through his property, such as to guard his fields, and had a window clearly for this purpose, but not when blocking a scenic view.”

“How do we rule in this dispute between Mahara Sasson and Maharalbach?” asked Levi.

“Maharsham (3:376) writes that when the wall was already built, the neighbor can maintain it,” answered Rabbi Dayan. “Moreover, he writes elsewhere that as long as a person builds in his own property, he has the upper hand. Thus, he can follow the lenient opinion of the Maharalbach (kim li).

“Therefore, Ari is entitled to build the fence,” concluded Rabbi Dayan. “However, to uphold proper neighborly relations, it would be appropriate to strive for a mutually beneficial solution” (see Emek Hamishpat, Shecheinim #19).