8 Responses

1. I suggest reviewing the sugiya in Bava Basra 28b-29a that discusses establishing a chazaka on land before you knock the goyish concept of adverse possession…

2. It’s funny to me because I actually had assumed that common law jurists originally appropriated adverse possession from Jewish law…

3. Dinei mamanos, particularly related property purchases, are elucidated in the Gemara to differ from place to place.

   Furthermore, one can stipulate any variety of conditions to a sale, individualizing the outcome (barring various exceptions, such as Yovel ownership).

   Enter: Dina dimalchusa Dina.

   When a person buys property they are in-effect being maskim to conditions of sale as dictated by dina dimalchusa.

   A good example of this is lrental/lease agreements, and the thirty day for eviction. By Torah standards, unless otherwise specified at the time of lease, if a tenant comes to pay the next months rent, it can be refused and they can be required to leave immediately without notice.

   Of course this is not a required allowance according to Torah, as an agreement can stipulate any specified amount of time to be necessary advanced notice before one would be required to vacate.

   One would then, at the time of renting, formulate an agreement in detail with all manner of stipulations etc, and/or a locale can/would have an established minimum standard that is Halachically binding in the absence of differing stipulations, or that stipulations can be added to.

   So by Torah standards there really isn’t chas viShalom on the spot eviction per se, rather notice is just one of the various/numerous details that one would stipulate at the time of renting, and haggling/doing so would arguably be standard practice.

   Enter today’s day and age. There is no communal Halachic standard, everyone conducts themselves as though the agreement is following the market standard etc, making absolutely no stipulations at all one way or another, and then chas viShalom a landlord thinks they can turn around and impose a no notice on the spot eviction citing Halacha when a better offer comes along.

   I would not indict the local Rabbis for making no standard or issuing no warning to their community that they need to agree on such protections at the time of agreement to protect their family from chas viShalom the ramifications of… because there is an established standard of dina dimalchusa, and it DOES NOT violate Torah chas viShalom, because they are all permissible stipulations had they been agreed to independently.

   It is fraudsters or careless observers who divise a reality where there is some norm of renting with no stipulated protections according to Halacha.

   It may even be argued that ‘hakol doresh bo’, this that one need only follow Dina dimalchusa in the manner that the majority follows it etc, and furthermore.., that dina dimalchusa’s thirty days notice is only to initiate eviction proceedings in court, and that inherent is the allowance for the tennant to remain until the court rules on the matter, the thirty days notice being merely a formality; i.e. a landlord may not evict a tenant, only a court can. To prove this point: when a tenant requests from the court a given amount of time to be able to even find another location (in a saturated market etc) the court approves it. I.e. the very protection being offered is a court hearing and the protections it offers, inherent to tennant rights, and reflected in the general market pricing. I.e. tenant rights.

   Squatters rights are equally included in the inherent dina dimalchusa, and is a condition of property acquisition, and should be reflected in market pricing. It is akin to a government possessing a house for unpaid property taxes, except when conditions are met, instead of retaining possession it is awarded to another.

   There are actually legitimate reasons for having such a right. And were a communal Halachic body reasoning them and issuing them as a standard, they would be binding, including if they stipulated that any agreement between parties to the contrary would be rendered moot/invalid.

   But more importantly, to reiterate, according to dina dimalchusa Dina legal standards in dinei mamanos are binding also between two Jews.

   To add, would one day that they offer the same price to goyim and leave them PROTECTED, but not a fellow Jew? And all the while not even stipulate this at the time of renting so protections can be agreed on (might as well just then say “let’s agree to the gvmt’s arrangement”, which is anyway otherwise binding)!!!

   With the above firmly established…
   The only notes which haven’t been elucidated is reasoning for squatter’s rights, and how one who avails themselves to them is merely benefitting from an inherent allowance, rather than stealing a property (for example, in a case where they establish a ten year residency in an unoccupied property and attain ownership..). I won’t elaborate on the civil management reasons that it’s proponents purport, involved as doing so would be, and because it is not per se my intention to promote it’s persistance, but suffice it to say, it is a binding facet of dina dimalchusa. (Just to satisfy those who can’t think of any reason for it, one is to prevent driving prices exorbitantly high through unoccupied property hoarding).

   The more relevant matter is, as a binding dina dimalchusa, one can breach an unoccupied property, repair the breach, occupy it for thirty days thereby establishing maintained residency (or ten years and for ownership), and retroactively their breached entry constitutes “allowed access” (by virtue of leaving the property unattended, or in a case of permitted access, hosting for over thirty days). Granted one may/would argue that such an allowance was unintended, however as a condition of ownership it remains an authorizable dinei mamanos facet of dina dimalchusa … Dina!

   It remains that one could take applicable steps to prevent the possibility of such an eventuality.

4. Schmendrick,

   The laws of chazaka only apply when they claim that you sold them the property years ago and the documents were lost.

   In those days, people weren’t expected to hold on to property documents for more than three years.

   Halacha makes it clear that if someone has a chazoka on someone’s property without the claim of having bought it – he is a common thief.

5. Shmendrick, I suggest that YOU review the sugya, since you seem to have completely forgotten the basic fundamental principle of the whole sugya, that a Chazaka she’ein imah ta’ana is not valid. If someone is living in someone else’s property for twenty years, or fifty or five hundred, and when challenged all he has to say for himself is “Lo amar li adam davar me’olam” — “nobody ever said anything to me”, then he automatically loses. Under civil law he wins, because he has adverse possession.

   The purpose of adverse possession is not to determine justice, but to ensure that you don’t have land lying around unused for years or decades, because the owner has forgotten all about it. So the law says if you don’t keep track of your property, to the extent that someone else is living there for many years and you didn’t say anything, then you lose it. The Torah says no, you can’t lose land just by neglecting it. But if the occupant claims to be there legally, and it’s been so long that he can’t reasonably be expected to be able to prove it, then we believe him. The fact that you didn’t protest once in all those years creates a strong presumption that he is telling the truth.

   However none of this is relevant to the case. As usual Rabbi Hoffman puts together completely unrelated concepts to make a cholent of a discussion. The issue here is not adverse possession. The squatter is not claiming the apartment belongs to her. The issue here is evicting a tenant. She admits the apartment is not hers, but she’s been there long enough to establish tenancy, so evicting her is a whole procedure, and the law is heavily and unfairly biased against landlords and in favor of tenants.

   This is not even “letakanas hamedinah” as Rabbi Hoffman alleges. It’s simply a matter of communist-inspired prejudice against — and hatred for — “rich” landlords. At root it’s an attack on the whole concept of private property. The legislators who pass these laws really don’t believe in private property, and think that landlords are automatically wrong because they have no right to own their buildings, and they should belong to whoever happens to live there. And therefore there is adequate room to claim that these laws are not “letakanas hamedina” and therefore Shmuel’s rule that “dina demalchusa dina” doesn’t apply.

6. Since we are discussing the law of chazaka / adverse possession it is worthwhile noting that both under halacha and civil law adverse possession can be negated by the owner serving notice on the occupant that he is not renouncing his claim, and intends to prosecute it one day when the time is right. There may be good reasons why he cannot pursue his claim today, but the occupant is now on notice that his occupancy is contested.

   According to halacha, the purpose of this notice is to allow the occupant to preserve the evidence that he is the legitimate owner; according to civil law, which doesn’t require that such evidence exist, it is simply to show that the owner has not abandoned the property.

   Eretz Yisrael belongs to the Jewish people. It was undoubtedly our collective property 2000 years ago, so the so-called “Palestinians” who arrived there while we were away are squatters. They have no claim to have legitimately bought it from us, so under halacha they are still illegitimate squatters and we have the right to repossess it at any time. But under civil law, if we had abandoned our claim then it would now belong to them. And even under halacha, they could now come up with a claim and a beis din would have to believe them.

   Therefore it is vital to note that we have been serving notice on them and the whole world, three times a day, every day that we have been away from our property. We declare three times a day that we intend to return to our property, one day when we are able to do so. And legally, both under civil and Torah law, that is sufficient notice to prevent chazaka and adverse possession from taking effect.

7. It’s dinei mamanos. Even in Halacha a locale can establish creative rules of ownership etc.

   Halacha discusses two individuals claiming the same property as it relates to chazaka “in a vacuum”, not the allowance of dina dimalchusa or any locale Jewish or otherwise to add distinct stipulations to purchases that affect a different outcome.

   E.g. a locale can institute that when you buy a property you have to maintain occupancy otherwise it reverts to them for resale (such as might be done in a case of a housing shortage). According to Torah, absent such a dina dimalchusa, the Halacha is clear, it’s the owner’s perpetually either way; enter dina dimalchusa, the property is not being wrongly resold, and one cannot claim no effective transfer of ownership out of the owner’s posession took place, but rather it would actually no longer be his by Halachic standards considering the dina dimalchusa, and the owner failed to perpetually fulfil a condition of ownership inherent in the sale, causing him to actually lose Halachic posession.

   And for sure dina dimalchusa can be established in such a way (even being that the default Halacha differs; and even a Jewish locale can do so, as the Halacha discusses a case with no such stipulation, but this doesn’t preclude them from being made).

   Also, it functions as an inherent condition of their original title/occupancy. So yes, ownership/occupancy can be Halachically affected without another act of transfer. It is akin to the fulfilment of a condition included in the original agreement/title which affects a retroactive limitation of duration of ownership/occupancy.

   Also, just as a country has eminent domain, or confiscation rights when property taxes (levied against someone who didn’t have money in first place) go unpaid, they can do this (and do so without an additional utility of transfer). And being that it relates to dinei mamanos, it does fall under dina dimalchusa Dina, as one is allowed to agree to such conditions of ownership/occupancy, so there is no conflict with Halacha in being required to follow these conditions, furthermore, it is more akin to the locale applying eminent domain, taking possession and then awarding the property/occupancy to another, in which case utility of transfer is a moot point, as is whether the original owner chooses to “disregard” the Halacha of dina dimalchusa, as it goes into affect anyway, and his objections are merely an objection to an operation that inherently happens anyway regardless of his disregard, or the religious identity of the second party. (Ergo, he cannot say that he’s not willingly fulfiling dina dimalchusa Dina, and therefore the second party is stealing it from him, as it is the locale that is taking it, and affecting the transfer through itself, so this goes into affect regardless of his “disregard”.)

   And again, it is within the rights of a government to have such conditions of title etc, on the same authority that they can justifiably affect eminent domain as per their specific varied guidelines, which also operate as a condition of sale.

   Certainly in this case the Rabbi, or an agent of his, should move to evict etc, however to imply that “adverse” possession etc.. is against Torah, or not binding, or that no transfer of ownership or approval of occupancy is affected, is to deny the application of dina dimalchusa Dina.

   It is like landlords who claim that dina dimalchusa Dina can’t apply to dinei mamanos (quite untrue) and they can therefore evict a G-d fearing tennant on the spot with no notice because they didn’t agree to a “Torah binding” grace period at the time of renting etc, and absent such a Halacha rules “in a vacuum” that they certainly reserve the right to. And of-course such treacherous treatment would only be perpetrated against a G-d fearing person and his family.

   Either way, you can’t have it both ways. And anyway, it is incorrect that such dina dimalchusa is not binding. Furthermore the Gemara gives explicit examples of where two contracts with the same terminology have different inclusions and exclusions based on the locale, with examples elucidated.

   In the USA one simply doesn’t have absolute ownership as otherwise imagined, and this is inherent to what we call ownership here.

   Granted adverse possession laws might be undesirable, but they are binding. Though, one can certainly lobby for the law to be changed.

   One can also view such laws as a foreshadowing of Moshiach’s coming: as Torah foretells “they will reform their swords into plows”! That instead of a country appropriating one’s home or a portion thereof to house soldiers in war (as was common), they are doing so to (arguably) house people (dei machsoro in some circumstances, like maybe this one) who have nowhere else to go.

8. Milhouse, thanks for reviewing the sugiya for me… You’re right. You are a true talmud chacham. I am modeh. With respect to adverse possession of real property, maybe it’s also worthwhile to review the sugiyos on kibbush yachid shmeih kibbush… To add to Milhouse’s point about the chazakah on Eretz Yisroel, public international law includes the concept of intertemporal law to determine which law is applicable to determine title to territory in dispute. The public international law applicable to determine the title of the territory of Yisroel at dispute prior to the conquest of the Romans was Jewish law, and according to Jewish law Yisroel has a superior historic title to the territory. Like the Rambam brings in Hilchos Beis haBechirah at the end of Perek 6, a chazakah is stronger than conquest. And, yes, the claim to the territory has remained consistent since Roman conquest and subjugation, no matter how many times it was transferred between different sovereigns since, and no statute of limitations exists on internationally wrongful acts. That’s why I believe that in the occupation of the territories today, when the IDF determines which law to apply to fulfill its obligations of Article 43 of the annex to The Hague Convention of 1907, which is applicable as customary international law no matter whether the regime ratified the convention (it states: “The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”), the “laws in force in the country” should be recognized as Jewish law, not Jodanian law. This would be part of the reason, for instance, to allow Yiddin to fulfill Avodah baMakom haMikdash, which never was legally annexed by the regime and apparently still is under occupation (notice the soldiers of Magav permanently stationed there, that’s a military occupation to this day…). Anyway, shkoyach!