Subject to certain conditions, physical control of a property establishes ownership even without consent of the previous owners. In fact, many landowners are surprised to learn that under certain circumstances a trespasser can come onto land, occupy it and gain legal ownership of it. Questions about ownership often wind up in court after an absentee owner of a property discovers that someone has been living on his land, or when a new owner discovers that a neighbor has been using his private driveway for access to her own property.
From a halachic perspective, obtaining ownership by virtue of occupation alone is simply inconceivable. Acquiring possession or transferring possession to another party is subject to a rigid mechanism that requires two basic conditions: mutual consent of the involved parties, and an act of kinyan — acquisition — appropriate to the acquired object and performed in a legally valid fashion. Consequently, a trespasser cannot obtain ownership by simply maintaining a physical presence on the property. In this case, the owner has not consented to transfer ownership, nor has the trespasser performed a proper kinyan.
Nevertheless, there are still instances where the halacha agrees that abandonment of property will lead to loss of ownership rights, as in the case of the Rockefeller Center. When the trespassing is done by the public and the owner does not protest their use of the property, a public right to use the property can be created. This principle is called metzar shehichziku bo rabbim — a “property on which the public has established their use.” Metzar shehichziku bo rabbim is the halachic term for a situation in which an owner’s de facto agreement to allow many people to use his property results in his abandoning his rights in favor of the public’s rights. Although the commitment to allow others to use his property is not written or expressed verbally, nevertheless, by virtue of his mechila — forgoing — of the owner’s rights by allowing strangers to use his property, the halacha forces him to continue to allow this “legal trespassing.” For instance, in a case of the public using an owner’s backyard as a shortcut, the fact that people have cleared a path in order to ease their passage is an establishment of usage, meeting standards of kinyanim, and the owner may no longer deprive the public of the right to use this shortcut.
In fact, common law also recognizes the distinction between adverse possession, which grants ownership without the owner’s consent, and a situation in which the trespassing is done by the public with the owner’s permission. If the owner allows the city to make improvements or maintain a segment of his land, a public right to use this part of his property can be created. This is called an “implied dedication” and is comparable to the halachic principle of metzar shehichziku bo rabbim.
Interestingly, the regulations of adverse possession or implied dedication might affect the halachic status of the property in question. As explained earlier, the principle of metzar shehichziku bo rabbim necessitates implied permission, granting certain legal rights to those who use the land. In an actual case adjudicated by Harav Shalom Schwadron (the Maharsham), the argument of metzar shehichziku bo rabbim was refuted based on the fact that the law of the land would not have considered the situation to be adverse possession or implied dedication, and therefore it could have been assumed that the owner of the property had not found it necessary to protest people’s use of the land; as such, there was no proof of implied permission on his behalf.
Adverse possession is the legal and intellectual basis for “squatting” — occupying abandoned property in a “notorious” (that is to say, open and obvious) manner for a period of time, after which the property in question passes from the original owner to the squatter. This concept dates back to the Code of Hammurabi in ancient Sumer (c. 1759 b.c.e.), which specified that if a citizen failed to cultivate his land for three years, then another citizen could take possession of that land by putting it to good use. Like other ideas, it has passed from one society to the next — from the Romans to the British to eventually becoming part of secular civil law in the United States. To quote a decision of a California court, the basic philosophy is that “land use has historically been favored over disuse, and therefore, one who uses land is preferred in the law to one who does not, even though the latter is the rightful owner.”
The argument that land use is favored over disuse may be understood in various ways. Some argue that land use is a community-oriented benefit favored over individual control, a basic tenet that advances the good of a particular society over the exclusive legal rights of an individual. However, in the specific case of the squatter, it is not the benefit of the community at large that is favorably treated, but the acceptance of a physical presence as the primary proof of ownership.
From a halachic perspective, a squatter has no standing in beis din without proof that the desertion of the property by the original owner was an intentional abandonment of legal rights — rendering the property hefker. Upon this condition and with the performance of an appropriate, intentional kinyan, he might take possession of the land. According to many opinions, just living on the land would not be enough to take legal possession, but even minor adjustments on the property might constitute a kinyan.
In summary, adverse possession totally disregards the basic principles of acquisition and forgoes all requirements necessary for a regular purchase. This is in sharp contrast to halachic requirements, which do not validate any acquisition without proper kinyanim.
Indeed, adverse possession is a case in point that illustrates the profound distinction between the halacha’s concept of ownership and that of secular civil law. Moreover, it touches on the ideological foundation that distinguishes Toras Moshe from a man-made system of law.
The Torah’s attitude of tying physical possession to a legal factor is contrary to secular law, in which material occupation creates legal facts. Perhaps it is the general worldview that has created this distinct difference between the two legal systems. Secular thinking accepts only concrete matters as reality, whereas Torah defines existence as a spiritual reality in which the physical appearance is secondary to a non-tangible reality. As such, possession is not a physical concept at all; it is the affirmation of ownership rooted in the belief that rights are based on privileges assigned by a higher authority.
Not always is a squatter intentionally intruding on someone else’s domain. Sometimes the trespasser may simply have made a mistake, relying on a faulty property description in a deed. For example, when property is sold, a title insurance company may refuse to insure that property because the neighbor’s garage is found to be standing squarely on the property. In this case civil law might apply another principle: “prescriptive easement,” allowing the neighbor use of the garage on the property owner’s land. “Prescriptive easement” grants a nonowner the right to use part of the property for a particular purpose. Courts sometimes appear more willing to grant such a trespasser prescriptive easement than to grant a squatter actual ownership through adverse possession. After all, such a situation is the result of an honest mistake and is not intentionally improper conduct.
Here again, the considerations of the legal system are based solely on commonsense fairness and are not subject to strict criteria, as opposed to halacha, which generally does not allow a beis din to transfer ownership at its own discretion and must meet halachic conditions of kinyanim.
Nevertheless, in some cases the Chachamim instituted “takanas hashuk” in order to facilitate business practices. Some of the poskim have discussed the possibility of enabling acquisition in a case of mistaken trespassing without an act of valid kinyan, in consideration of one’s inhabiting and utilizing the property. In such a case, a Rabbinic statute (takana) would supersede halachic norms and would assign ownership to the inhabitant of the land. In this situation, it would be up to beis din to find a solution that satisfies the parties in the context of lifnim mishuras hadin, making fair moral decisions beyond the letter of the law.
Once a year, pedestrian traffic in some parts of Rockefeller Center between Fifth and Sixth Avenues in the center of Manhattan comes to a halt. The area is closed off and surrounded by barriers, causing major inconvenience to pedestrians. There is no construction or any other noticeable reason for this troublesome circumstance, and it leaves one speculating as to the purpose of this shutdown.
Surprisingly, this closure has nothing to do with any improvements being made to the property; it is merely a legal technicality. The legal owner of the plaza allows and encourages use of this property as a walkway and venue for leisure. As such, the owner must make a physical demonstration of the fact that he has not abandoned the property and must “protest” the use of his property by nonowners; failure to do so will actually lead to a loss of ownership. Therefore, some parts of Rockefeller Center Plaza are closed to the public for twenty-four hours once a year.
The trained legal mind knows that he has observed here the practical application of a most fundamental common-law legal principle: adverse possession. Adverse possession is a principle of real-estate law whereby someone who possesses the land of another for an extended period of time may be able to claim legal title to that land.