Sunday, November 13, 2011

Choshen Mishpat: Chazakah when using your neighbour's area

The first mishna in the 3rd perek of Bava Basra says that it takes three years to gain a chazakah on land. This means that if someone farms a field for 3 years, and then the previous owner claims that the field belongs to him and that he never sold it, we believe the current occupier that he bought the field seeing as he has occupied the land for 3 years without the previous owner complaining.
In addition to being in the land for 3 years, the current resident also has to have a ta’anah – that is, he has to explain how the land came to be his. So for example, he may say that the previous owner sold the land to him or that he gave it to him as a present.
The Shulchan Aruch in Hilchos Nizkei Shecheinim (Choshen Mishpat, 153:16) says that in addition to chazakah applying to acquiring land or other property, it also applies to acquiring rights to make use of a neighbour’s property.
The Shulchan Aruch says;
חפר שמעון בכותל זה והכניס בה קורה אחת ושתק ראובן ולא מיחה בו החזיק במקום הקורה
“If Shimon made a hole in a shared wall and used it to support a beam, and his neighbour Reuvain was silent and he didn’t protest then Shimon has a chazakah on using the wall to hold the beam.”
This means that if the neighbour did not initially protest when the beam was placed on the shared wall, then the person who put the beam in place gains a chazakah and can keep his beam in place. The Ketzos HaChoshen (s”k 3) brings a machlokess rishonim if the halacha of chazakah for using a neighbour’s property is the same as a normal chazakah. Do you need 3 years and a ta’anah?
-          According to the Rashbam, it depends if your use of your neighbour’s property will limit their own use or not. For example, if you want to have a drainpipe installed on the outside of your house whose water will flow through your neighbour’s property, that will diminish your neighbour’s use of his land and in this case you have to have 3 years and a ta’anah in order to gain a chazakah.
However if you have use your neighbour’s property in a way which does not affect him, such as in the case of a beam on a shared wall, then you do not need 3 years to gain a chazakah but you do need a ta’anah.
-          The Geonim, on the other hand, say that in the case of neighbours using each other’s land, the chazakah takes effect immediately and there is also no need for a ta’anah. This is because as soon as the neighbour does not protest, we say that he was mochel the right to the other neighbour. Once he has been mochel, he cannot take his mechilah back.
The Ketzos HaChoshen asks on the Geonim as follows;
In order for a right to be transferred from one person to another, first the owner of right has to relinquish his ownership of the right and then, secondly, the second person has to acquire the right. In our case, even if the neighbour whose property is being used was mochel the right to use his property, nevertheless the second neighbour did not perform a maaseh kinyan to acquire this right and therefore does not own the right permanently.
As long as he has not acquired the right, the mechilah of the first neighbour can be taken back. This is similar to a case where someone allows someone else to damage his property. Seeing as the second person has not acquired the right to damage his property, the first person can always change his mind and if the second person then goes ahead and damages the property he has to pay for the damage.
Even if it as the Geonim say, that the neighbour whose property is intruded on is mochel the right to use his property, he should still be able to change his mind seeing as the other neighbour who is using the right has not made a maaseh kinyan?
Making the kinyan
The mishna says that you can acquire land with money, through a document or by doing an act which shows that you are taking possession of the field, such as by locking the gate to the field.
There is a machlokess between the Rambam and the Raavad whether or not eating the produce from a field also constitutes a maaseh kinyan. According to the Rambam this is a maaseh kinyan, according to the Raavad (also the Rosh, the Ran and other rishonim) this is not a kinyan. The Ketzos HaChoshen explains that according to the Rambam we can understand the opinion of the Geonim. The same way that you can acquire land by eating its produce, you can also acquire the right to use your neighbour’s property by using his property.
For example, if you have a drainpipe installed that runs into your neighbour’s garden and he is mochel the right to have the water flow into his garden to you, then you acquire the right by having the drainpipe installed there because the installation uses the right which you want to acquire.
The problem is that there are Rishonim who agree with the Raavad, that eating produce is not a kinyan, but who also pasken like the Geonim and say that regarding a chazakah to use your neighbour’s land, as soon as he has been mochel the right to use his land he cannot go back. According to these rishonim, how did you acquire this right?
The Ketzos answers as follows;
The gemara in Bava Basra (100a) brings a machlokess between Rebbi Eliezer and the Chachamim if you can acquire land by walking through it. The gemara says that everyone agrees that you can acquire a path through a vineyard by walking through it;
א"ר יוסי בר' חנינא מודים חכמים לר"א בשביל של כרמים הואיל ונעשה להילוך נקנה בהילוך
“Rebbi Yosi Bar Rabbi Chaninah says, ‘The chachamim agree to Rebbi Eliezer with a path through a vineyard that since the person acquires it only for walking through it (and not for cultivating it) that he can acquire it by walking through it.”
The Ketzos explains that the Rambam and the Raavad only argue if you can acquire land by eating its produce in a case where you want to acquire the whole land, not just the right to eat the fruit. However in a case where you only want to acquire the right that you use, such as in the case of the path through the vineyard where you only want to acquire the right to walk down the path, and this is what you did, everyone agrees that this is a valid kinyan.
In the case of using a neighbours’ property, you only want to acquire the right which you are using, therefore everyone agrees that you can make a kinyan in this way. This is why, according to the Geonim, the owner cannot change his mind once he has been mochel his right to his neighbour.

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