Hilchos Choshen Mishpat

Volume II : Number 6

Public Use Of Private Property

Question:

1. Reuven owns an empty lot next to a group of stores. For many years people have used this lot as a shortcut to the stores, and for parking their cars while shopping. Reuven has never objected to this. Reuven is now making plans to construct an office building on his lot. The people in the neighborhood are objecting, claiming that since Reuven had permitted the public to use his lot for so many years, this is considered as if he had donated it for public use, and he has no right to take it back.

   Who is correct?

2. The residents of a certain neighborhood in Jerusalem take a shortcut from the top of a hill to the bottom by going through an apartment building built into the hill. This has been going on for many years, and the residents of the building have not objected. However, as the neighborhood grows, more and more people have been making use of this shortcut. The residents of the building now want to stop this practice.

   Can they prevent the people who have been using this shortcut over the past years from doing so?

Answer:

1. If a person has specifically and willingly given the public the rights to use his property with no time limitation on the public's rights, it is considered as if the public acquired these rights from him, and he has no right to reverse this agreement. Our Rabbis call this a "Meitzar Shehichziku Bo Rabim", a path that the public has taken possession of.

   This is true even if the original owner is now offering a different property that is even more convenient for public use to replace this one. Not only that, but even if the residents of the neighborhood are prepared to accept the owners offer and forfeit their rights to this land, they have no right to do so. Once it is owned by the public, it is owned by the entire public, even the non-residents. The residents have no authority to represent the non-resident public's rights in this forfeiture.

2. If the property owner did not expressly give the public rights to his property, the public still acquires rights if the community leveled or paved the property, or otherwise made a change to the property that would only be done by a person with ownership rights, and the owner was aware of this and remained silent.

   However, if he merely saw that people were walking through, or parking on his property, and did not prevent them from doing so because he really had no use for the property at that time, if he were to decide to now take back the property for his own use, he is permitted to do so. This is true even if the public has been using his property for many years.

3. In light of the above, in neither of the cases in question would the Halacha of "Meitzar Shehichziku Bo Rabim" apply. Therefore, the owner of the lot is permitted to take it back to build on, and the residents of the apartment building can now prevent non-residents from using their building as a shortcut.

Sources:

The principles of this Halacha are discussed in the Gemara in Bava Basra (99b - 100a). The Rashbam there (D"H Shehichziku Bo Rabbim) points out that we can only consider it to belong to the public if they did an act to the property that is generally only done with the approval of the owner, and the owner is aware of it and remains silent. Although this is not specifically mentioned by the other Rishonim, the Bais Yosef and the Perisha in Choshen Mishpat (377) quote the Rashbam as the Halacha without quoting anyone that differs with this opinion. Therefore, unless the owner expressly donated the property to the public for indefinite use, or remained silent even after seeing the property being fixed up for public use in a permanent manner, the property remains in the possession of the owner even if the public had use of it for many years.

For a discussion as to who qualifies as the "public" regarding this Halacha, see the Pischei Teshuva in Choshen Mishpat (377:1-2), and in the Teshuvos Avnei Nezer (Choshen Mishpat Siman 13).

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This issue of Business-Halacha is dedicated by Moshe Hillson in memory of his father Dov Arye (benjamin) Hillson, his mother Machla Zlata (Marion) Hillson, and his aunts Frieda Friedman and Sara Lea (Lilian) Port.

This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!