Larry and Barry’s Conflicting Sukkah Porches

Question

My friend and I both merited to purchase apartments in Eretz Yisroel in the same building. The building was completed right before Sukkos, and we were both ecstatic about the thought of spending Sukkos this year in our new apartments, each of which included a built-in sukkah porch.

We both arrived in Eretz Yisroel right after Yom Kippur, and while we were overjoyed to make a brocha on our new homes, we quickly discovered a major issue. Although both sukkah porches had been completed, the porches had been constructed with removable roofs in such a way that when the roofs were removed, it was impossible for both of us to use our sukkah porches at the same time.

At that point, we were extremely disappointed. We had both been anticipating all year the opportunity to sit in our new sukkos, and now our hopes were dashed. There was no way for both of us to fulfill the mitzvah in our own sukkah.

When we went to the builder to explain the situation, he apologized profusely and even offered to pay for one of us to build a temporary sukkah in the building’s courtyard. However, he said that it was impossible to fix the structural issue in time for this Sukkos so that both of us could use our porches.

Now we find ourselves in a quandary. We both wish to use our new sukkos, and our respective families will be devastated if we cannot. Therefore, we turn to the rov for guidance, so that we can resolve this issue peacefully, preserve the wonderful friendship we have enjoyed until now, and ensure that this incident does not harm our relationship.

Thank you so much.

Larry and Barry

Rav Zafrani 

First of all, I am sorry that this blunder occurred. Be’ezras Hashem, by next year, the builder will be able to correct the removable roofs so that both of you can sit in your sukkos on Sukkos.

However, for this year, it seems impossible for both of you to use your sukkos simultaneously. Only one of you will be able to sit in your apartment sukkah this Yom Tov. The question, then, is: Which of you should have that privilege?

The Gemara in Bava Basra (12b) discusses partners who must divide a shared property. If a particular division benefits one partner more than the other, and the second partner does not lose anything from it, then we compel that division. To deny it would be considered middas Sedom—an act of selfishness.

But what if both partners would like the same division and only one can have it? The Rosh (1:46) writes that in such a case, the matter should be decided by a goral—a lottery—and the Rama (Choshen Mishpot 174:1) rules that halacha follows this view.

Therefore, in your case, the proper course of action is to take two slips of paper, one labeled “sukkah” and one left blank. Place them in a container or hat, and each of you should draw one. Whoever picks the slip that says “sukkah” earns the right to use the sukkah this year. Be’ezras Hashem, by next year, the builder will have corrected the issue so that both of you can fulfill the mitzvah in your own sukkos.

I also want to add that it brings me great joy that you chose to ask this question rather than argue over it. All Jews should follow your admirable example.