By Rabbi Yair Hoffman for

Many of our shuls have living quarters or other purpose rooms above them. Are they kosher? If so, is it ideal?

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 [this also includes a Bais HaMidrash] 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. He further writes in Part B 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. One may lay down in a building that was originally built for another purpose and later used as a shul.

Concern for One’s Soul

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.

This has become a widespread problem of late. With few exceptions, yeshiva after yeshiva has built a floor above the Bais Midrash that is used for dorm facilities. Even though the Ramah permits it, the Mishna Brurah tells us we should distance ourselves from it.

Is A Shul Like the Azarah or the Haichal?

The Shulchan Aruch’s question in Part B 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 do 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?

It is also interesting to note that if the upper section was built at the same time as the shul or Bais HaMidrash then it is certainly permitted. This is the ruling of the Mishna Brurah too. There is one caveat, though. And it is an important one.

Extremely Unseemly

The Mishna Brurah states, (as does the TaZ) that a use which is extremely unseemly, would be forbidden even in such circumstances where the upper building was built at the same time as the shul or Bais Midrash. Examples of extremely unseemly activities are ones that smell horribly and if a gentile is performing Avodah Zarah there.

The reason for it is that somehow these things prevent the tefillah from travelling up to heavenly realms. The TaZ compares it to the halachos of amain found in Orech Chaim Chapter 55. He explains that even though an iron wall will not prevent prayers from reaching our Father in Heaven, these things will.

What if it is several floors above the Bais HaMidrash? Would it be okay in such circumstances? The Avnei Naizer in OC #32 says that it is not.

One might point out that surely this is not a new question. Yeshiva buildings must have been used as a dormitories even in Europe. Surely there is room for leniency. What was the rationale of rabbis in Europe?

There is one opinion that must certainly be central to any lenient position espoused. The Aruch haShulchan writes that the issue is not a fully halachic issue, but rather a question as to whether one should make a commemoration of every “Mikdash Me’at” to compare it to the Haichal. This position would indicate that there certainly is room to be lenient.

The TaZ, however, 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 TaZ’s sad narrative seems to indicate that he is not in agreement with the position of the Aruch HaShulchan and he holds that this law is not a mere commemoration, but actual binding law. The language of the Kneseth HaGedolah is also somewhat frightening. He 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.”

Is there no hope then for yeshiva dorms?

The Steipler Gaon zatzal in Kreina D’Igrasa Vol. II #86 addresses the issue and writes that in our times in the big cities people are lenient and we may apply the expression, “The masses have already trampled here and Hashem watches fools.”

Rav Ovadiah Yoseph Shlita has a responsa (Yabia Omer OC VI #26) that one can be lenient on a third floor or above. The Shaivet haLaivi has a similar leniency in his responsa Vol. I #27. Both opinions seem to accept the Aruch HaShulchan’s underlying rationale. Indeed, the Mishna Brurah himself seems to reject part of the TaZ’s halachic structure in comparing this to the case of Avodah Zarah and activities that smell horribly.

Dayan Weiss zatzal in Minchas Yitzchok Vol. II #48 seems to be stringent, however.

An interesting story comes to us from a reader in Kiryat Sefer:

“I moved into Kiryat Sefer the day it opened. 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.”

The conclusion? There is room to be lenient, especially on a third floor. However, one who wishes to be stringent, a blessing will certainly come upon him.

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