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Reclaiming real estate left in the old country
By Dayan Shlomo Cohen, Badatz Ahavat Shalom, Yerushalayim
As mentioned in our previous article, a proposed Senate bill to make the recovery of property plundered by the Nazis easier presents a special challenge to the Jewish legal system.
Previously, we spoke about plundered moveable property. In this article, I would like to discuss the case of plundered real estate. This is relevant to many different communities who were forced to flee their countries in pursuit of freedom and safety.
Objects vs. Real Estate
The first point that must be explained is why there should be a difference between a case of plundered moveable property, such as a painting, and real estate that was confiscated.
In the case of all moveable property that is either stolen or lost, at some point in the time the owner will give up all hope of ever getting it back (Ye’ush). In the case of lost property, according to some Poskim (most notably Rashi), the giving up hope of ever retrieving the property is in fact the relinquishing of ownership (Hefker). This means that the finder becomes the legal owner of the property, even if he were to know who the owner is. It would of course be admirable and ethical to return the property to its owner, but as per the letter of the law, there is no obligation to do so.
Where the property was stolen, as explained in the previous article, the giving up of hope, together with the sale of the property exempts the buyer from having to return, under certain circumstances, either the property or its monetary value.
Still There
However, this is only because the owner has given up all hope of retrieving or finding his property.
Let’s say that you lost your wallet, gave up hope of retrieving it, and then found it in the bottom drawer of your wardrobe at home. Would it be considered Hefker and require a new kinyan (act of acquisition) on your behalf?
The answer is no, it is not. No new act of acquisition would be required.
The reason for this is that it was always in your domain, and your giving up hope or Hefker, was a mistake. The principle here is that you cannot give up hope of finding something that is in your domain, even if you don’t know it’s there!
If so, surely one cannot render as Hefker his domain itself (unless he does so with specific intention). Your domain remains yours wherever it is.
This is the reason for the statement of our sages that “real estate can never be stolen” (Karka Eina Nigzelet), and that “the owner of land never gives up hope of its retrieval” (Ein Ye’ush L’Karka).
It is impossible to ‘lose’ your domain, as wherever it is, and whoever is currently sitting on it, it remains your domain. Only moveable property is it possible to “lose”, when it is removed from your domain.
This Halacha has many ramifications. One of which is that while for example a car thief (who is caught) will not be required to pay rent for the car while it was in his possession, but simply return it as it was when stolen, as this is the obligation of a thief: one who lives on the real estate of another is required to pay rent when caught, as he never stole the real estate, but benefited from it.
The application of this Halacha to the case of land appropriated from Jews by the Nazi or other tyrannical governments would seem to be that, unlike in the case of moveable property, even though the real estate may have been sold, and is currently in the possession of a Jew; Bet Din would force the current Jewish owner to return the land to its original owner, and even pay rent for the time it was with him.
State of Emergency
However, the Gemara (Masechet Gittin 55b) tells us that there are extreme cases where the owner of land is forced to give his land over under the threat of death, in which he is considered to have given up any hope of recovery. Maran in Shulhan Aruch rules (Hoshen Mishpat 536:1) that in any such case, the Jewish buyer would not be required to return the land to its owner, but pay him a third of the price paid by the current owner.
The reason for this payment is that it can be presumed that the land was sold at a reduced price, and this sum, saved by the buyer, at the expense of the owner must be refunded. Where the land was sold to its current owner for the market price, this would not be applicable.
The Rama disagrees, claiming that the above only applies where the Jew gave his real estate over to the Nazis to save himself from being killed. Where the land was taken by force, it must be returned to its Jewish owner, who must reimburse the buyer for any improvements he may have carried out.
Hence, there is a disagreement between Maran, who maintains that plundered real estate need not be returned to its original owner by a Jewish buyer, while the opinion of he Rama is that it does.
Ashkenazim vs. Sefaradim
In any such case, the accepted practice amongst many Ashkenazi communities is that the buyer, being the party in possession, can claim that perhaps the Halacha is like Maran, (“Kim Li”) exempting them from returning the property. This is the rule in any monetary case where the Rama does not write specifically that the opinion he brings is either the Halacha or accepted custom.
However, the generally accepted custom amongst the Sephardic community is to rule like the opinion of Maran in all monetary cases, and not to accept a claim that maybe the Halacha is like the opinion of the Rama who disagrees.
As you can see, in this case, the different customs pose no difficulty and regardless of the nationality of the parties to the case, Bet Din will rule like the opinion of Maran, exempting the buyer from returning the property.
Conclusion
To conclude, it turns out that the case of plundered real estate has the same ruling as the case of plundered moveable property, but as the reader can see, for a totally different reason.
The question still remains in the wake of the new Senate bill, where the buyer is a non-observant Jew ho will not accept the authority of Bet Din, and go to a secular court, where he will lose the case and the real estate or moveable property will be returned to the original owner. Is the owner, as an observant Jew allowed to accept this ruling which is awarding him property that is not due to him according to Jewish monetary law? Be’Ezrat Hashem, this question will be dealt with in a future article.