Monday, May 09, 2005

Bava Basra Halachah l'Ma'aseh

Interesting BB question posed on "Ask the Rabbi" at torah.org:

I am interested in a specific case involving myself and a neighbor. I have
been living in my home for 26 years. I have had a neighbor for 22 of those
years that shares a divided driveway, divided by a gate. After neighbor of
22 years moved out, a new neighbor now wants to claim 6 inches as his
property. Meaning the gate now must be moved 6 inches closer into my home.
What are the laws, if any and please relate it to the time my residency
time is involved.

My response:

The issue presents interesting halachic issues. The question of chezkas tashmishim, discussed at the end of the third perek of Bava Basra clashes here with the question of ownership. That is, from the third perek of BB we know that no matter how much time has elapsed, if the other party can produce a shtar (in this case, a deed), the land is his - as the chazakah of three years is only effective in cases in which there is no document extant. Thus, it is clear that you cannot assert ownership. OTOH, it would seem that you have a chezkas tashmishin to use your neighbor's chatzer. I think, however, that such chezkas tashmishin only works where there was no physical encroachment on the neighbor's property, but only usage. Indeed, on the contrary, there is a she'eilah here of hasogas gevul mamash. Hence, I regret to say, it seems to me that your neighbor is within his rights.

But this was written only as a quick opinion, not as an halachic decision!

13 comments:

  1. In such a situation where does the inyan of "dina da malchut dina" fit in if for example there is a conflict between what civil law and torah law would say on this issue?

    ReplyDelete
  2. That is a machlokes between the Ritva and Rabbeinu Yonah (e.g., as to whether in a Din Torah between two Jews the dina d'malchusa need be taken into account). I know a certain sefer on Bava Basra that discusses the issue at length. :-)

    ReplyDelete
  3. For those of you not too quick on the draw, the sefer being referred to is Bigdei Shesh al Masechta Bava Basra by Rabbi Yosef Gavriel Bechhofer. :)

    ReplyDelete
  4. Also an interesting bein adam lachavero problem is discussed by Rabbi Jachter on his website
    http://www.koltorah.org/index2.html

    It is entitled -The Case of the Flying CD Player (http://tinyurl.com/atprl)

    ReplyDelete
  5. From Avodah:

    To: Yosef Gavriel Bechhofer
    Cc: avodah@aishdas.org
    From: Chana Luntz

    The case as set out in this blog is as follows:


    >I am interested in a specific case involving myself and a neighbor. I have
    >been living in my home for 26 years. I have had a neighbor for 22 of those
    >years that shares a divided driveway, divided by a gate. After neighbor of
    >22 years moved out, a new neighbor now wants to claim 6 inches as his
    >property. Meaning the gate now must be moved 6 inches closer into my >home. What are the laws, if any and please relate it to the time my residency
    >time is involved.


    >My [RYGB's] response:


    >The issue presents interesting halachic issues. The question of chezkas >tashmishim, discussed at the end of the third perek of Bava Basra clashes >here with the question of ownership. That is, from the third perek of BB we >now that no matter how much time has elapsed, if the other party can >produce a shtar (in this case, a deed), the land is his - as the chazakah of >three years is only effective in cases in which there is no document extant. >Thus, it is clear that you cannot assert ownership. OTOH, it would seem that >you have a chezkas tashmishin to use your neighbor's chatzer. I think, >however, that such chezkas tashmishin only works where there was no >physical encroachment on the neighbor's property, but only usage. Indeed, >on the contrary, there is a she'eilah here of hasogas gevul mamash. Hence, >I regret to say, it seems to me that your neighbor is within his rights.


    >But this was written only as a quick opinion, not as an halachic decision!



    Commenting on this case on the blog:


    >At Monday, May 09, 2005 8:54:01 AM, Rael Levinsohn said…
    >In such a situation where does the inyan of "dina da malchut dina" fit in if for >example there is a conflict between what civil law and torah law would say >on this issue?


    >At Monday, May 09, 2005 9:07:40 AM, YGB said…
    >That is a machlokes between the Ritva and Rabbeinu Yonah (e.g., as to >whether in a Din Torah between two Jews the dina d'malchusa need be >taken into account). I know a certain sefer on Bava Basra that discusses the >issue at length.


    Two questions/comments:


    a) given that it is a machlokus, and the neighbour is the one requiring that the gate be moved, and hence is the one that would need to go to beis din to change the status quo, why does not the questioner have the right to state that he is relying on the opinion that dina d'malchusa dina needs to be taken into account as a valid defence?


    b) is it really true that the other party can be said to produce a "shtar (in this case a deed)"? I don't know how it is under the law of the American State where this is occurring, but under English law these days, it is extremely rare for anybody to prove title by means of title deeds. The reason is that around 50 years ago, the Government legislated to set up the Land Registry, and required that all land, when it was next transferred, be registered at the Land Registry. Once land becomes registered land by virtue of being registered at the Land Registry, title is no longer proved by means of title deeds, but by means of registration at the Land Registry. So production of a deed in the case of registered land means nothing, what one has to show to prove title is registration at the Land Registry.


    Now in addition there is a concept under English law (and I am pretty sure that it was a concept that American law took from English law) of "adverse possession". That means that if somebody is in possession of property without protest for a certain period of time (set by statute these days, but at least in England less than 26 years), then that person becomes the legal owner of the land, and can apply to be legally recognised as such. In the case of registered land, that would mean by going through a procedure (possibly involving the courts) which would result in the Land Registry modifying the entry in the register.


    Now all this can be done without reference to any other person. ie if I am in adverse possession of a piece of property, I can apply for me to be legally registered as the owner and the case is fundamentally between me and the Land Registry (although no doubt the Land Registry will want to try and determine whether in fact there was protest from the legal owner of the land over which I am claiming adverse possession).


    And if I get the Land Registry entry amended to show that I am the legal owner of the property, then that, for the purposes of English law, is what makes me the legal owner, and the other person has no title to show.


    So I can't quite see how this neighbour, under English law at any rate, could ever produce a halachic shtar. [Interesting side note, when we bought our current house, we bought it from an elderly bachelor in his 90s, who had inherited it from his parents who had bought it from the original builder in 1925, before land was required to be registered. So when we bought it, it was unregistered land. But as part of the sale, one of the legal obligations incumbent on our solicitor was to send the title deeds to the Land Registry and get it registered. He then sent us the title deeds (once they were returned from the Land Registry) to us as a courtesy, but they are now of curio value only (they are very pretty with some grand copperplate handwriting), and cannot be used to prove title. And certainly in the case of our old house, we bought and sold it without ever receiving anything approximating a title deed.]


    So I would have thought, vis a vis dinei mamonus, there would be no obligation on the person to move the gate, and that a beis din would not require it since no valid title to the land could be proved. On the other hand, if the person indeed originally committed the issur of hasogas gvul, it might be that b'yadei shamayim the person is indeed chayav, and if they are a yerei shamayim might well want to move the gate or come to some accommodation with their neighbour.


    Shabbat Shalom


    Chana

    ReplyDelete
  6. More from Avodah:

    On thinking about this further s not this in fact precisely the case quoted in relation to dina d'malchusa dina in Baba Basra 55a - except that under Persian law, the period for adverse possession was 40 years (See the Rashbam's explanation there). Why does not the case of the neighbours fall squarely within this example.


    Shavuah tov


    Chana

    ReplyDelete
  7. Rabbeinu Yonah there argues on the Rashbam and says the case cannot be talking about a din between two Jews. I have copied it out of the Shittah (thanks to DBS!).


    שיטה מקובצת מסכת בבא בתרא דף נה/א
    אריסות דפרסאי עד ארבעין שנין. פירוש כגון שהנהיג המלך שתועיל חזקה לעכו"ם בארבעין שנין הלכך עכו"ם שלקח קרקע מישראל והחזיק בו ארבעין שנין הופקעה מישראל מדינא דמלכותא וזכה בה ישראל אפילו אם היא גזולה בידי העכו"ם כיון שאין שם עדי גזלה ואם לקחה ישראל זכה בה ואין ישראל הראשון יכול להוציאה מידו אף על גב דקיימא לן הבא מחמת עכו"ם הרי הוא כעכו"ם אבל אין לפרש דישראל שמחזיק בנכסי חברו בארץ פרס דאין לו חזקה אלא בארבעין שנין דסתם חוקי המלך על בני אומתו בלבד הם ואפילו אם פירש והטיל הנהגתו על ישראל כיון שיכול ישראל לכוף את חברו בדיני ישראל אין המלך כופה אותו לדון באותם הדינים והמנהגות שהנהיג נמצא שלא פקע זכות של ישראל מחמת אותו דינא דמלכותא אלא אם כן הלך חברו לדון בפני ערכאות שלהם ודנו אותן בדינא דמלכותא ולא קבע המלך אותם הדינים על ישראל אלא לענין שידונו אותם בערכאות שלהם כך. ושמעינן מהכא דאפילו בדברים שאינם להנאות המלך אמרינן דינא דמלכותא דינא ובפרק קמא דגיטין נמי אמרינן תני חוץ מגטי נשים כלומר דשטר מתנה בערכאות פסול ולא אמרינן קיימא לן דינא דמלכותא דינא ולא כאידך לישנא דאתמר התם דטעמא דמתניתין משום דינא דמלכותא דינא. ולי נראה דלהכי אמרינן התם תני חוץ מכגיטי נשים ולא משנינן ליה משום דינא דמלכותא דינא לפי שאין המלך מפקיע ממון ישראל אצל חברו אלא כל זמן שהוא בא לדון בערכאות שלהם הלכך אף על פי שעושה ישראל שטר לחברו בערכאותיהם לא עשה ולא כלום ולפום לישנא דקאמר התם טעמא דמתניתין משום דינא דמלכותא פירושו שאין המוכר יכול לחזור בו עוד שכבר הופקעה ממנו השדה בדינא דמלכותא וכשיחזיק בה הלה יזכה בה ולא בשטר עצמו זוכה בה וכמו שאתה אומר בשטרי מכר בזוזי קני. אי נמי אפשר שקונים בשטר וכדקא אמרינן התם האי סיתומתא קניא באתרא דנהיגי למקני בה ודינא דמלכותא נמי כמנהגא הוי. עליות:

    ReplyDelete
  8. From: Chana Luntz
    Subject: Re: YGB: Bava Basra Halachah l'Ma'aseh


    In message Yosef Gavriel & Shoshanah M. Bechhofer writes


    Rabbeinu Yonah there argues on the Rashbam and says the case cannot be talking about a din between two Jews. I cannot cite the Hebrew on Avodah, but I have copied it out of the Shittah (thanks to DBS!) at the blog site.


    http://rygb.blogspot.com/2005/05/bava-basra-halachah-lmaaseh.html


    Thanks for the cite.


    However, as I said in my first post, to the extent that there is a machlokus rishonim directly on point, why can't the neighbour who asked the question argue kim li - since he is the one being asked to take action?


    But secondly, the Rabbanu Yona's position appears to be:


    a) the stam laws of the king are only intended for his people not Yisroel so it does not apply between Jew and Jew;


    b) even if he did specifically intend to include Jews since a Jew is able to force another Jew to judgement in front of beis din, and the king is not able to force him to come to the secular courts, the king does not fix the law on the Jews except when they come before his courts.


    c) Rabbanu Yona learns from here that even things that are not a takana for the benefit ("hana'a") of the king falls within the category of dina d'malchusa dina.


    Now in relation to a), while that may well have been the position and intention of the Persian kings who gave the Rosh Galusa a lot of autonomy, is there anybody who argues that that is the position of modern day states (who intent is easily determinable in this regard and who pretty clearly intend their statutes to cover Jews).


    c) is interesting in that, whatever may have been the intention of the Persian kings, the stated intent of the modern day law of adverse possession, as it is classically explained to law students (who are usually uncomfortable with the idea that you can lose ownership of property in this manner) is that it is a law passed by the state/sovereign because it is not in the interests of the state to have land within its boundaries that is not being worked/used and is being neglected/run down, and if somebody does not have sufficient interest in their property to protest the usage by somebody else of their land for such a significant period of time, the state has an interest in stepping in and making sure the land is owned by somebody who will make better use of it. Understanding adverse possession using that explanation, it would seem to me, seems to put it reasonably clearly within the category of providing benefit to the king and not the way Rabbanu Yona understood the gemora's case.


    But b) it seems to me, in the case of modern day land registration systems, makes Rabbanu Yona's position even more difficult to maintain than it was before. Under the traditional system of land ownership the way to prove ownership was by proving a chain of title, and so an owner kept each document showing the transfer from one previous owner to the next, all the way back to the person given the original grant from the Crown (or whoever), and so one could in theory turn up to beis din with one's pile of documents and prove ownership, and if one did not bring that pile of documents to the secular courts, it would be difficult for them to establish ownership of a particular piece of land.


    However today, the land registry system means that, whatever judgement beis din may decide, the *only* way to establish title to a piece of property is to then go to the land registry (which is an arm of the state), ie come before the equivalent of the secular courts. And because of the system, the courts are able to establish title regardless of the co-operation (or lack of it) of any of the parties. So that, when we bought and sold our first house, despite the fact that we bought it from frum Jews, and subsequently sold it to frum Jews, and had frum Jewish solicitors (lawyers in American) on all sides, it was still necessary for our solicitors (when we bought) or our purchasers' solicitors (when we sold) to register the sale at the land registry, and had we not done so, we would not have had legal title, and there was no way of going to beis din that would have rectified that. And I have certainly never heard of anybody suggesting that we should have a shadow economy in which properties never (under the secular law) change hands until the first time in which somebody wishes to sell to a non-Jew or that we should not comply with the obligations that the State places on us to register all sales of property. And, since the State takes a whopping big tax (called stamp duty) in this country on each land transfer, while the economics of such a shadow economy might be attractive, the State would unquestionably view it as a form of tax evasion. Hence I suspect that even Rabbanu Yona would, today, view land transfer as something in which the State has a serious and abiding interest and subject to dina d'malchusa dina.


    KT,
    YGB


    Regards


    Chana

    ReplyDelete
  9. At 05:00 PM 5/16/2005, Chana Luntz wrote:

    However, as I said in my first post, to the extent that there is a machlokus rishonim directly on point, why can't the neighbour who asked the question argue kim li - since he is the one being asked to take action?

    My response:

    I assume he can say kim li. If indeed there is an American law (of which I am not aware, not being a lawyer - or a solicitor) that usage supercedes title, he would be able to claim the land as his own. However, what little I learned from:

    http://real-estate-law.freeadvice.com/

    says:

    When you purchase real property, you will receive a written document (called "the deed") which transfers the ownership (title) of the property to you as the purchaser. The deed gives you formal title in exchange usually for a specified amount of money. The conveyance of real property is not complete until the deed is delivered to you or your authorized agent.

    When you get the deed, you should record it with the county recorder in the county where the property is located. The purpose of recording the deed is to give "notice to the world" that you now have an ownership interest in that particular piece of real property.

    Recording also tracks the chronological chain of title. Anyone who wants to know who owns a piece of real property can check the records of the county recorder for the county where the property is located. Before you purchase real property, you can follow the chain of sales and transfers of the property - from the original grant of the land all the way to the current owner. When title insurance is purchased, the title insurer checks the change of title to determine whether any defects occurred in prior conveyances and transfers - defects may then be pointed out and excluded from coverage. As a purchaser of property, you want to check that every time in the past, when the property was transferred, the grantor had clear title to the property and the previous purchasers obtained clear title. If someone in the past got less than "the whole bundle of sticks" you will not get clear title.


    and:

    Easements and encroachments also affect your ownership of land. People may have been traveling across your land for years to gain access to adjacent property. Your neighbor may have placed a fence across fifteen feet of your property line. Benefits and burdens run with the land - what you obtained when you acquired the property from the previous owner passes to you. The easements and encroachments, whether they be benefits or burdens upon your land, which existed at the time that you acquired the land continue, while you own the land.

    An easement is the right of a no owner to use your land for a designated purpose (e.g., accessing the beach in your case). A right of way is a form of easement granted by the property owner which gives the right to travel over your land and to have the reasonable use and enjoyment of your property to others, as long as it is not inconsistent with your use and enjoyment of the land. These principles had their origin in traditional common law which governed, for example, the free flow of water or allowed neighboring landowners to travel over another’s property (an informal "road system"). Although ownership rights of property are lessened by an easement, society at large benefits due to the additional freedom of movement.

    An encroachment is an unauthorized entry upon land of another; whether or not an obstruction is placed upon the land. Traditional common law created the action of trespass for injury to your property (trampling your flower bed in your case) when another interfered with your property rights by an unauthorized and direct breach of the boundaries of your land, enabling you to bring a lawsuit to recover damages for the intrusion. The converse is also true, when you trespass or encroach upon the land of another, you can be held responsible for damages.


    I did not see anything about time limits. So it would appear that from the Dina d'Malchusa perspective this is a simple case of encroachment that will be voided when the deed is produced.

    The rest of your argument seems to be based on an intricacy of English law not applicable to the US.

    YGB

    ReplyDelete
  10. From: Chana Luntz
    Subject: Re: YGB: Bava Basra Halachah l'Ma'aseh

    Yosef Gavriel & Shoshanah M. Bechhofer writes
    ...snip...
    title, he would be able to claim the land as his own. However, what little
    I learned from:


    http://real-estate-law.freeadvice.com/



    But what you should see is from exactly the same website, a few items down:


    What is adverse possession?


    Traditional common law provided a method for someone to obtain title to land
    through use. The common law rules for adverse possession have been codified
    under both federal and state statutes. A typical statute allows a person to get
    title to land from the actual owner simply by using the land, out in the open
    for all to see. For example, your neighbor built a fence on your land with the
    intention of taking the property, paid property taxes, and you knew about it
    but did nothing. If this continued for a period of time set by state law, your
    neighbor may be able to claim this property as his/her own. The theory is that,
    by not disputing your neighbor’s use of your property through a lawsuit, you, as
    the actual owner have abandoned your rights to the property. There are several
    elements needed for adverse possession to result in title:


    The length of time required for adverse possession in title varies - it could be
    as short as a few years or could run for twenty years or more. Typically public
    entities must establish a longer period of possession than individuals. Some
    states have adopted a rule which requires the adverse possessor to pay taxes
    each year on the land.


    The possession must be open for all to see.


    The possession must be exclusive to him or her (e.g., the fence in the above
    example, a driveway, road, etc.)


    The possession must be hostile to the actual owner of the land.


    To gain title to land through adverse possession requires strict compliance with
    the law, but can have dramatic impact upon land ownership rights.


    An encroachment could result in title to your property being transferred to an
    adverse possessor. Under these circumstances, you might have to bring a lawsuit
    for trespass in order to prevent your neighbor from getting title to your land
    through adverse possession.


    If you own land, it is important that you do not "sleep on your rights" since
    you could lose ownership of the land.



    This is despite county recording (or, more accurately, no doubt the way to get
    rectification of one's title is via the county recording and the courts) - and
    if one takes via adverse possession, the title documents (recorded at the
    county registry or not) are no longer valid and need to be rectified.


    You then discuss easements. Easements, however, are different, they are, as the
    website says, rights of non owners to travel across land. Once an easement has
    been established, it is then difficult to prevent the non owners travelling
    across the land (eg you, or in this case your neighbour, may not be legally
    permitted to put up a fence blocking access if you had a traditional easement).

    But the case that seemed to be described here is not about whether not access
    can be blocked, but about whether or not six inches of land belongs to that
    person or not, necessitating moving a gate six inches closer to the other
    neighbour's property. I therefore understood the case to be a case where the
    neighbour was claiming six inches of land as their own (title), not disputing
    the right of the other neighbour to access that property where title was not
    under dispute(easement). Have I misunderstood the case?


    An encroachment is an unauthorized entry upon land of another; whether or not an obstruction is placed upon the land ...
    ...snip...
    Dina d'Malchusa perspective this is a simple case of encroachment that will
    be voided when the deed is produced.



    This if all true - up to and prior to the time limit set for adverse possession.
    ie, if one encroaches on another's land (ie attempts to adversely possess it),
    the owner has a remedy - but if one does not exercise one's remedies within the
    adverse possession time frame, nor do anything else to protest such actions, and
    appear quite happy with the fence (or whatever) being set at a certain point,
    then one give up these rights by efluxion of time (varying depending on
    statute, as the website says).


    The rest of your argument seems to be based on an intricacy of English law
    not applicable to the US.



    I don't think there is a vast difference, although there seems to be more
    emphasis on checking the chain of title at the registry, while here there is
    more presumption that the latest entry is correct, and you can start your
    investigations from there.


    However, the website makes clear that what this registration does is give
    "notice to the world" as to your title, and the method of checking the
    chronological chain of title is by means of the registry (not the old method by
    which you held on to each and every transfer deed in the chain). That means, if
    you don't register your title, you will struggle to prove it to the next person
    - and, for adverse possession to work (as it clearly does by dint of Federal
    and State statutes) you would presumably have to apply to have your title
    recognised at the registry by virtue of adverse possession.


    Some of this does turn on the websites "should" as in "When you get the deed,
    you should record it with the county recorder in the county where the property
    is located." Does that mean - it is a good idea, or does that mean, it is
    legally mandated. I strongly suspect that it is the latter, which makes it
    very close to the English system. But even if it is the former, the
    traditional risk is, what if the seller then purports to sell the property to a
    different buyer, and also gives them a deed of sale - who gets the land?
    Traditionally it was the one to whom the property was sold first, but since
    registration, most laws state it is the one who registers first. That means
    that you don't really have protected title until you register.


    The other issues is taxes and this may vary from country to country. In England
    there is a big tax called stamp duty levied on transfer of property, but there
    appears to be no mention on the website of such a tax, only of property taxes
    levied on the property once it is owned by the buyer. However, I would query
    how such property taxes are determined. My guess is that if such taxes are
    levied on the owner, and not the person in residence, that would indeed by
    determined via the register, which means that by not registering your purchase
    of the property, you would be evading taxes (and the seller would be very keen
    to get off the register so he/she is not liable for taxes that he/she no longer
    ought to be paying) - creating another reason why registration is necessary, why
    the State has an interest, and why the sale and purchase of a property are not
    something that the State regards as a private matter between citizens where
    they are free to only involve their local arbiters (beis din) and not any
    instruments of the State (which appears to be Rabbanu Yona's argument as to why
    dina d'malchusa dina was not applicable in a similar Persian case).


    Regards


    Chana

    ReplyDelete
  11. The Mishna would say that your neighbor would require to share the cost of dismantling and that you both own the current gate and material and that you are required to move into your own space (Dina Malchuta dina) and build a wall or gate of your own and put up a barrier on an angle if you want there to be a dividing item.

    ReplyDelete