Bava Batra 28a, 42a
“Excuse me, you are sitting in my seat.” How many times have we been asked to move while deep in prayer in the synagogue? Of course, the simplest thing to do is to get up and look for another seat. But if you wanted to make an issue of it, this is what you could say:
“Show me a receipt that you paid for this seat.” Or, “Bring me a witness who can testify that this seat belongs to you.” Or, “What are you talking about? I purchased this seat myself and although I have lost my receipt, I have been sitting here regularly, whenever I come to synagogue, for three years now.”
All of this seems trivial, of course, when talking about shul seats. It is very serious, though, when talking about houses or land.
Shimon: “Excuse me, this is my house you are living in. See here the document of title. It says it belongs to me.”
Rueven: “It may have been your house once, but you sold it to me.”
Shimon: “Oh yeah? So where’s your deed of title that proves I sold it to you?
Reuven: “I did have a deed of title, but I lost it.
Shimon: “Yeah, right. Move it.”
Reuven: “No way. I’ve been living here for three years, day after day. Where were you? You know very well that you sold it to me. That is why you allowed me to be here, year after year, without saying a word. You are just taking advantage of me because I lost my document of title. Now go away and leave me alone.”
And this case then ends up in court. In this situation, the Jewish court of law will rule in favor of Reuven. This is because Reuven has earned a חזקה —chazaka, a right to the house or the land by virtue of his uninterrupted and unchallenged possession of it over a consecutive period of three years. During these three years, he has used the house in public as if it were his own. He has locked the front door, taken his meals at the table, watered the lawn and done all the things homeowners usually do with their property. If it is a field, he has sown it with seed, irrigated it or allowed his cattle to graze on it.
The court will ask Shimon: “Why did you stand silently by for three years? Why did you not challenge Reuven or at least lodge an objection in the presence of two witnesses?” Shimon has only one possible answer to this. “I could not, because I was away at war for three years and there was no way of communicating my objection.” Barring such extreme circumstances, Shimon loses the case.
This is not to say that Jewish law legitimizes squatters. Reuven cannot merely say, “I am here because nobody else was.” He must plead a טענה — ta’anah, a claim that he purchased the real estate from Shimon, received it from him as a gift, foreclosed on the real estate because Shimon defaulted on debt or some other legitimate claim. כל חזקה שאין עמה טענה אינה חזקה — Kol chazakah she’ein ima ta’anah, einah chazaka is the Talmud’s way of saying “no squatters allowed.”
There are exceptions to the right of Chazaka. These exceptions occur when it is not possible to infer that the lack of objection or challenge to the uninterrupted three-year possession can only mean admission. Such is the case between husband and wife, father and dependent son, two partners on an indivisible piece of real estate, or a sharecropper on the landowner’s field.
In these situations, it is understandable that the owner would allow three years to go by without objecting. After all it’s my child, it’s my spouse. Of course I would let them use it for as long as they needed it. But that has nothing whatsoever to do with ownership. Or he’s a sharecropper and the specific arrangement between them allowed for the sharecropper to be on the owner’s land for three years. But that too has nothing to do with ownership.
Other cases in which the right of Chazaka does not infer ownership are situations in which raising an objection or challenge to the uninterrupted use of the occupier could cost one one’s life or physical safety. Victims of war, who left their homes for fear of their lives and who have some evidence to prove they once owned the property, are not barred from their homes after three years. And the right of Chazaka only applies when the person relying on it is Jewish.
Raphael Grunfeld received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Rav Dovid Feinstein, ztz’’l. A partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, Raphael Grunfeld is the author of “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerayim” available for purchase at www.amazon.com/dp/057816731X and “Ner Eyal: A Guide to the Laws of Shabbat and Festivals in Seder Moed” available for purchase at www.amazon.com/dp/0615118992. Questions for the author can be sent to [email protected].
