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Parking on your neighbor’s property and adverse possession in Halacha
By Rav Shlomo Cohen, Dayan at Ahavas Shalom, Yerushalayim, Author of Pure Money
Good fences make good neighbors, as the old adage goes. When neighbors live in close proximity, there are times when clear property lines must be drawn. However, what happens when a neighbor steps over the line? Can a person make use of another person’s property without express permission?
Presumed Ownership
The Mishna[1] discusses the rules of Hezkat Tashmishin, when one establishes presumed ownership of the right of usage over another person’s property. A person who obtains such a Hazaka on another person’s property is now presumed to have the rights for the full use of it, even though he does not own it. Once presumed ownership – the Hazaka – takes effect, the owner cannot prevent the other party from using the property.
For example, if a neighbor has a Hazaka that the rainwater from his roof drains into his neighbor’s property or that his window looks out into his neighbor’s courtyard, the owner cannot do anything to prevent this continued use of his property.
Earning a Hazaka
There is a fundamental argument between the Rambam and the Rosh, as well Maran and the Rama, as to how a person can obtain a Hazaka to use someone else’s property.
According to the Rambam, if the owner did not make an objection to the usage immediately, then the neighbor has established a Hazaka. For example, if a person were to make a large window opening onto his neighbor’s courtyard and the neighbor realizes that this could affect his privacy and his right to later build into the space that is in the window’s view – it is imperative for the neighbor to protest right away. If there is no objection, then the person will hold a Hazaka to use the property in this manner. Maran follows this opinion L’Halacha[2].
The Rosh presents a different opinion. According to the Rosh, in order to stake a Hezkat Tashmishin, the neighbor must have used it for three years. Only then, he can – and must – make a claim (Te’ana) that he has acquired the rights to use the property by purchasing it, receiving it as a gift or that the neighbor gave in to his usage of the property. The Rama quotes this opinion.
Determining the Rama’s Opinion
The Netivot HaMishpat notes that the Rama does not state that our custom is to follow the Rosh. Therefore, writes the Netivot HaMishpat, the one who has been using the property without his neighbor’s protest – the Muhzak – has the right to claim that he wants to abide by the ruling of the Rambam and the Shulchan Aruch who grant him a Hazaka immediately following the owner’s first opportunity to protest (in accordance with the general rule known as “Kim Li” – that one can prevent the Bet Din from taking away what is presumed to be his if there is a viable opinion on his side).
However, there seems to be a contradiction in the Rama’s opinion on this matter. In the Rama’s discussion of a “Ziz” – a board or edge of a beam which sticks out onto another’s property[3] – he cites the opinion of the Rosh, saying that Hezkas Tashmishin is established only after three years. While he does not say that this is the absolute Halacha against the Rambam, nevertheless, he does indicate that it could be the Halacha. Yet, when the Rama discusses the rules for a window, he says that the Halacha follows the Rambam, who maintains that a Hazaka is earned immediately, if the owner did not protest.
How can we understand this apparent contradiction?
The Difference between a Protruding Board and a Window
One resolution is that there is an essential difference between someone who opened a window onto a property and between someone who puts out a Ziz[4]. As soon as a neighbor installs a window overlooking one’s property, one can immediately realize that it will affect his ability to enjoy the usage of his property. Naturally, he should immediately protest this infringement, and if he does not do so, then the neighbor will have presumed ownership over that right.
However, when a neighbor puts out a Ziz, it may take longer to realize the potential damage. Therefore, the Rama indicates that in this case the owner has a longer time-period to protest. The rule regarding the amount of time to protest follows the amount of time it could reasonably be expected for one to realize the damage being caused. If the owner waits longer than that to make a protest, we assume that he forgave his rights, and the neighbor would establish a Hazaka.
The Netivot HaMishpat takes another approach to explain why the Rama implies different time-limits to protest a Hazaka. He argues that both with regards to the window and the Ziz, it may be possible to realize the potential infringement on the owner’s rights straightaway. However, he explains, setting up a window with a view onto a neighbor’s yard is far more objectionable, and therefore warrants an immediate protest from the owner. If the owner stands by without objecting, then the neighbor immediately begets a Hazaka. Whereas, the potential damage from a Ziz is generally less objectionable, and it may be that the owner would hesitate to start a fight about it right away. Therefore, the owner has a longer time-span before we can establish a Hazaka on the usage of the protruding Ziz.
One Parking Space, Three Vehicles
An illustration of the practical applications of Hezkat Tashmishin can be found in your neighbor’s driveway. Consider the following scenario:
Reuven has a private parking lot outside of his house. The parking lot has space for one big car. Reuven has three neighbors. One rides a bicycle, the other drives a small car, and the third rides a motorbike.
If the bicycle owner begins leaving his bicycle in Reuven’s lot and Reuven does not protest, this would not grant the bicycle owner a Hazaka to leave it there. This is because the bicycle is a small, easily moved object which doesn’t cause a significant interference with Reuven’s use of his parking lot. Thus, it may be that Reuven did not protest because it didn’t bother him at all.
Reuven’s lack of protest would not imply that he had forgiven any of his rights to the bicycle owner. In fact, according to the Rambam, cited by the Shulhan Aruch, if he were to protest, it would be like Middat Sedom (the ways of Sedom) because he is preventing another person’s benefit, despite the fact that it causes him no harm[5].
If the car owner begins parking in Reuven’s lot, and Reuven does not protest, he still would not have a Hazaka to park there. This is because by parking his car there, the neighbor is completely taking away Reuven’s use of his property. This renders him a thief, and a thief cannot establish a Hazaka. The only way that the neighbor could be permitted to park on Reuven’s lot would be if he actually buys the parking lot or if Reuven gives it to him, or rents it to him with a proper Kinyan. Even according to the Rambam, a Hazaka in this case – presumed ownership – can only be established after three years with a valid claim of ownership by sale, rental or gift.
Only if the motorbike driver begins to park on Reuven’s lot and Reuven does not say anything, would there be a Hazaka for him to continue parking there. This is because the motorbike is a big, heavy vehicle yet it does not completely prevent Reuven from parking. It may be a tight fit to get both Reuven’s car and the motorbike into the parking lot, but it can be done. This is a use which many people, quite understandably, would not allow. Therefore, if Reuven does not protest, the motorbike driver can claim that Reuven granted him that use and he would have a Hazaka to use Reuven’s parking lot.
If your neighbor begins to use your property, it may be tempting to avoid saying anything. You may not want to cause an argument with him. However, it is worthwhile to voice an objection upfront, to prevent his establishing a Hazaka and a bigger argument later, down the road. A direct confrontation is not necessary. One can also register a protest in front of two witnesses or write a Shetar Meha’ah – a “Document of Protest”. As Hazal tell us: “Who is considered wise? One who foresees the future”.
Sources:
[1] Bava Batra 58b
[2] C.M. 153:2
[3] Ibid.
[4] Sema
[5] There is an argument whether a consideration of Middat Sedom would allow others to use one’s property.