Rabbi Meir Orlian
Mr. Weiss lived in a small co-op apartment that he owned. He was an elderly man, well into his 90s, and had lost his wife a few years earlier. After a long and fulfilled life, Mr. Weiss also passed away. In his will, he granted the apartment in equal shares to his two sons, Reuven and Shimon.
Reuven, of meager means, lived in a rented apartment not far from his father. Shimon already owned a house elsewhere.
The two brothers discussed what to do with the apartment. Unfortunately, their relationship was somewhat strained, so they could not come to a mutual agreement.
Reuven was happy to keep the apartment in the family’s possession. He considered moving into the apartment, but was unsure whether he could afford to buy Shimon’s half. On the other hand, Shimon preferred to sell the apartment on the open market, where he thought he could get a better price than anything Shimon could offer.
At one point, Reuven began using the apartment. Shimon approached him and demanded that he authorize selling it on the open market.
“I’m not interested in doing anything with the apartment,” said Reuven. “If you’re my partner in the apartment, you’re welcome to use it with me!”
“That’s not a realistic option,” said Shimon. “You realize that the apartment is not appropriate for two families!”
After a number of months of bickering, and the beginnings of legal proceedings, Reuven suggested that they approach Rabbi Dayan and ask what Halachah has to say about the issue.
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“What should we do with our father’s apartment?” asked Reuven. “What form of division is appropriate according to Halachah?”
“Halachah offers three legal options for property that partners do not want to use jointly, but can neither divide nor come to a mutual agreement about,” answered Rabbi Dayan. “The preferred option is known as ‘gode o agode — take or I will take.’ One party buys the other party’s share. The party interested in disbanding the partnership sets a price, and can force the other party to either buy or sell the other half for that price. According to many authorities, he can set a price even above the objective, assessed value, but cannot set one below it. If both parties are interested in selling, they should sell to a third party” (C.M. 171:6-7).
“What if one party is not interested in buying the other half,” asked Shimon, “but wants to sell the property on the open market to the highest bidder?”
“There appears to be a dispute on this issue,” replied Rabbi Dayan. “According to the Rambam and Shulchan Aruch one can demand gode o agode to sell at a high price to a third party, whereas the Rosh and Rema disagree. The Beis Yosef suggests, though, that the Rosh disagrees only if the other party is at least willing to buy the property at its assessed price. Conversely, Nesivos Hamishpat suggests that the Rambam only allows claiming gode o agode to sell to a third party if one will suffer a great loss otherwise, such as if he is unable to use the property” (C.M. 171:6; Nesivos 171:9; Pischei Choshen, Shutfim 6:27).
“What other options are there?” asked Shimon.
“If neither party is interested in selling and the property can be rented, it should be rented to others or to one of the parties,” responded Rabbi Dayan. “If it is not intended for renting, they should time-share the property; each party should use it for a reasonable time, alternating. It is preferable, though, that one party acquire it completely through gode o agode”