לעילוי נשמת

יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

Question: May one build a sukkah in front of his house but on public property?

Answer: Most of our discussion will focus on the ability to fulfill the mitzvah, but civic considerations are crucial regarding the mitzvah as well as on their own.

The Rabbanan rules that one does not need to own the sukkah he uses, but that it must not be stolen (Sukkah 27b). The Gemara (ibid. 31a) says that the Rabbanan hold that not every sukkah connected to an element of theft is disqualified. For example, a sukkah on another’s property—including public property—is not disqualified as stolen because “land cannot be stolen,” meaning that land is seen as remaining in possession of its owner even if someone else is occupying it.

However, the Rama (Orach Chayim 637:3 and citing a Yerushalmi in Darchei Moshe, Orach Chayim 637:1) forbids building a sukkah in the public domain or on a counterpart’s property without consent, saying that only bedieved one fulfills the mitzvah in those circumstances. The Magen Avraham (637:3) posits that although land is not “stolen enough” for the aveira to disqualify the mitzvah (mitzvah habaah beaveira), that concept does preclude making a bracha on such an unauthorized sukkah (see Machatzit Hashekel ad loc.). We find a precedent regarding arba minim that were stolen and acquired by the thief—the mitzvah can be fulfilled, but it is disgraceful to make a bracha in such a case (Shulchan Aruch, Orach Chayim 649:1) The Eliya Rabba (637:4) distinguishes between the cases—theft caused switched ownership for the arba minim, whereas here the sukkah’s ownership is unchanged. He also claims that even if one should not make the bracha, it would not be levatala since the mitzvah is valid. The Mishna Berura (637:10; Biur Halacha ad loc.) prefers the Eliya Rabba’s ruling when there are no good alternative places for a sukkah.

There are grounds to distinguish between public ground and a neighbor’s property. There is a greater chance the public implicitly agrees to such use of their land—as it belongs to and is used in some ways by all residents. This logic explains why poskim do not usually require permission from neighbors to use part of the joint property for a sukkah (Chut Shani, Sukkot, page 223). While a neighbor may be happy for someone to use his sukkah while he is away (Mishna Berura 637:9), this is not true of building a sukkah on his property without permission (Pri Megadim, EA 637:7).

Poskim are unhappy about using a sukkah (see Dirshu 637:12) on an illegally-built a mirpeset (balcony)—although, seemingly, after years of quiet on the matter—we can probably assume permission to use the mirpeset as one wants, at least in the meantime. In a Jewish community or even many friendly non-Jewish ones, it can often be assumed that people understand the use of the area near one’s house for his sukkah (Chut Shani ibid). Eshel Avraham (Butchach, siman 637) says that even in non-Jewish countries, lack of opposition is equivalent to permission. Rav Shlomo Zalman Auerbach is cited (Halichot Shlomo, Sukkot 7:11) as being more provisional in allowing such a sukkah—there should be general permission from the locale and it should be done in a way that it does not impinge on use of the street/sidewalk. It is worthwhile for a rabbi to ascertain if (and, perhaps, influence that) the appropriate powers-that-be generally allow people to use the relevant public property.

When to assume permission depends on different things. Regarding place, attitude to religious Jews is a factor, as is socio-economics. Fancier neighborhoods are often more particular about nuisances and eyesores; how much space people have on their own property is also a factor. The size and positioning of the sukkah are also important, as one should not take advantage even when there is general permission. Choosing between a smaller sukkah on one’s own property and a bigger one on a public area can be difficult, and both the kashrut of the sukkah and menschlichkeit are important factors. An important rule is—you can be machmir (strict) on yourself, but must judge others (i.e., those who are using public land) favorably.

This column is written by Rabbi Daniel Mann on behalf of the Eretz Hemdah Institute in Jerusalem, which trains dayanim and has many projects on behalf of klal Yisrael, including its “Ask the Rabbi” service in conjunction with the OU. Rabbi Mann is a dayan at Eretz Hemdah, a senior member of the “Ask the Rabbi” project, and author of its “Living the Halachic Process” series. He is also a Ram at Yeshiva University’s Gruss Kollel in Israel.