Knocking Down a Shul to Build Apartments Above it: A Halachic Analyis

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By Rabbi Yair Hoffman for the Five Towns Jewish Times

It was a shul built in 1906, and now it lays in the heart of Boro Park. It is located on 12th Avenue and 41st street and is called Chevra Anshei Lubawitz.  And while it is nusach Ari according to its bylaws – it is not a Lubavitch shul

In the middle of June, unbeknown to the membership, the shul was sold by two people on the board to developer Moses Karpen, a friend of one of the board members.  Karpen’s plan was to demolish the shul and convert it to six stories of apartments – but leaving at least part of the bottom floor to be used as a shul.

The building was sold for 3.1 million dollars on June 14th.

This week, however, a  Brooklyn judge  blocked the demolition at least temporarily, after some of the members argued that the sale was based on misrepresentations.  Indeed, according to court papers some seventeen members are upset about it.

According to media reports, as part of the deal, the synagogue would pay $3 million for the first floor and basement of the new building.  This is $100,000 less than they received for the property.

The Daily News reports that members of the synagogue claimed that the two board members behind the sale made no effort to seek other offers and that the building was never offered on the open market.

One of the many halachic issue involved in this bizarre arrangement is whether it is appropriate to knock down an existing shul for the purpose of building housing on top of it.

There is another issue in Shulchan Aruch Yore Deah Siman 252 that a shul is not to be knocked down unless it is dangerous people inside and could fall.

So far, not one Posaik has been identified as having permitted this sale, despite repeated requests to speak to one – even with a promise of keeping his identify anonymous.

In response to an earlier version of this article, someone involved explained that the plans were for the shul to be built behind with nothing above the roof.  This does not address the issue of knocking down a shul.

The Shulchan Aruch Orech Chaim (151:12) writes as follows: One must be careful from using an aliyah (an attic or second floor) that is above a Bais HaKnesses  regularly for a use which is “legnai” – indecorous or unseemly.

The Shulchan Aruch cites sleeping or lying down as an example of an unseemly activity. This would therefore include six floors of apartments.  Rav Karo further writes in the second part  of this halacha that there is a question as to whether other types of activities are permitted in such a location.

The Ramah adds a qualification. He writes that this halacha only refers to a Shul which was initially established as a shul. However, in a building that was originally built as a regular building and only afterward established as a shul – there one may indeed lay down.

The cornerstone of this shul shows conclusively that it was originally built as a shul.

The Ramah’s leniency stems from a ruling of the Piskei Mahari. On this Ramah, however, the Mishna Brurah (OC 151:42), citing the Mogain Avrohom who cites the Kneseth HaGedolah, remarks that, nonetheless, one who is concerned for his soul should distance himself from this – especially in the section above the haichal.

The Shulchan Aruch’s question in the second part of the halacha  about other types of activities is explained by the Mishna Brurah as being based upon the following question: Do we compare a shul to the Azarah in the Bais HaMikdash, in which case the upper sections do not retain a state of holiness? Or perhaps we compare a shul or Bais HaMidrash to the Haichal of the Bais HaMikdash itself, in which case the upper sections would retain a state of holiness?

The TaZ in Orech Chaim 151:4 writes that when he was younger he and his children lived in his Bais Midrash in the city of Cracow, above a shul. He writes that he was punished severely and lost his young son [in an apparent fire]. He placed the blame on the fact that he lived above a shul.

The language of the Kneseth HaGedolah writes, “Whoever I have seen who has made a Bais HaMidrash in his house and he uses the floor that is above this Bais Midrash- did not succeed. Of them, some have lost their wealth, some have died, and some did not merit to be built.”

Someone once told this author the following story after having moved to Kiryat Sefer the day it opened over 25  years ago.

“For quite a few years all the shuls were in miklatim [bomb shelters] and there were some serious accidents, cholim etc. We went to Rav Chaim Kanievsky [the son of the Steipler Rav mentioned earlier] and asked him what type of tikkun [rectification] we can do. He asked us where the shuls are. Telling him that most of the shuls were located in the miklatim under apartments, he mentioned that his father was very makpid on this. Together with the builders of Kiryat Sefer and the gabboim, a date was set for all shuls to be moved into temporary caravans or permanent buildings.

I cannot tell you exactly how long ago this was but we are talking about at least 12 years ago. It gave us a push to get the shuls built. Also, until we did move out, Rav Chaim told us to cordon off the exact area where the bathroom was located on the floor directly above the shul and not to daven there. Rav Shteinman was also involved with this psak but I cannot tell you exactly what he said. [I] just know that he was also pushing for us to move out of the miklatim.”

There are, of course, leniencies when the shul was only made after the building was built, and the Aruch haShulchan writes that it is a mussar matter rather than absolute halacha.  However, in this case, it was originally built exclusively as a shul.

In recent months there have been a number of cases involving shuls and their sales or alleged sales, and one questions whether they were done under the guidance of a recognized  Posaik.

The author can be reached at yairhoffman2@gmail.com

{Matzav.com}

5 COMMENTS

  1. Cla$$ic ca$e of, gelt trumps alli$! Again, some greedy real estate “investor” trying to make a quick buck with yenims property on the backs of the gullible. When the dollar signs are flashing in front of these bihaimos, halacha and yashrus takes a back seat.

  2. To the one (thinking of) profiting:
    Whether you claim to have found some loophole “היתר” or not, no doubt, this goes in line with all אינו רואה סימן ברכה לעולם” asides that it usually does not end too pretty, as many cases have indicated so.
    Demolishing a Shul for profit is as ,בזיון וחילול השם as can be!
    As for myself or any Jew that believes, I would never move in in such house, no matter what good of a deal.
    Anyone in Boro Park can tell you, there is an empty lot on between 16 and 17 Ave on 59 ST, which had once a mansion type of house, and has been sitting empty and then demolished for tens of yrs. Find out why.

  3. To keep the comments to a minimum, let’s make a few things clear. . .
    This is NOT about CHaBa”D. Whether the nusach davenned there at one time was or was not Nusach Ari, and whether or not the founding Rav or kehillah, or any Rav or kehillah was or was not associated with CHaBa”D chasiddus is NOT the point here and is just stated as a matter if historical reference.

    Whether or not some or most of the current membership was or was not aware of the sale is NOT the point here (although it may be important to the secular courts when making any further decisions regarding the case).

    The ONLY issue here is the halachah. Was a Rav/Posek consulted? If so, who is he and will he make himself, his p’sak, and his reasoning public?

  4. Instead of wiggling into boards of old orthodox Shuls where these money hungry individuals do and did the last twenty years, why don’t they infiltrated the reform and conservative temples and with their shtick take over and knock those down. You can start with the Boro park reform temple on 46 street between 15 and 16 Aves. Go buy them out or become board members and take over. Prime real estate.

  5. This attempted demolishing is an outright חילול שם שמים בפרהסיא and an outright violation of the איסור דאורייתא of לא תעשון כן לה’ אלקיכם.

    The young rabbi moshe yosef unsdorfer stands to benefit greatly as a direct result of his “psak” to erase a siman in שלחן ערוך and demolish this מקדש מעט.

    Klal Yisroel cannot allow this trampling of Halacha and our sacred בתי כנסיות from being trampled upon and then sold to private real estate developers for their financial gains.

    We must all be מוחה למען השם ותורתו from allowing this public travesty from being able to happen.

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