The Three-Year Chazakah

Chazakah of Real Estate

It is explained in the Gemara, Bava Batra (folio 28), that one who purchases or receives land, in order to be established as its owner without needing to show a deed of acquisition, must hold the land for at least three years, and he must also have a claim explaining on what basis he held the land (for example, that he bought it or received it as a gift; but he cannot say that he held it merely because no one protested against him and the like).

The Ketzot HaChoshen (siman 140) explains the reason for this chazakah as follows: “In my humble opinion, the essence of the three-year chazakah is nothing other than a rabbinic enactment for the proper functioning of society, since people are not accustomed to guarding a document for more than three years. The possessor reasons that since he has been sitting in it for a period of three years and no one has raised any objection, no objection will arise again, and he therefore will not guard it any longer. This would lead to loss for purchasers. Therefore, the Sages saw fit to enact that he should be believed through a three-year chazakah, and the one who contests it, if the truth is with him, should protest within three years; after the protest, the possessor too will guard his deed, and if he does not protest within three years, the challenger will lose. This also appears from the language of the Nimukei Yosef at the beginning of the chapter ‘Chezkas’ (14a in the pages of the Rif): ‘Longer than that he does not guard it, for he thinks that the other will no longer challenge...’ And since this is the mindset of people, the Sages enacted only three years.” This implies that it is a rabbinic enactment, and that both parties were provided for — the possessor and the challenger — as we have written. And these are the words of the Rambam, chapter 11 of To’en VeNit’an (halachah 2): “Since you did not protest, you caused yourself the loss,” see there. This appears to accord with our words: the enactment was for both of them — the possessor retains what is his after his three-year chazakah, and the challenger, if the truth was with him, should have protested; since he did not protest, he lost. Whereas according to the reasoning of the Ramban, we would say: since he did not protest, there is an indication that he sold it to him, and the phrase “you caused yourself the loss” is not applicable,” end quote.

The view of the Ramban (Bava Batra 28) is that a three-year chazakah is Biblical in force, since a person does not see another holding his field and his house and remain silent. However, on the other hand, there is a weakness in the purchaser’s claim, for he should have shown the deed of sale; therefore, only after three years is he no longer required to show it. According to the above Ketzot HaChoshen, it is a rabbinic enactment that after three years a person will not need to continue guarding his document [and see Rashi, Ketubot 17]; but if a protest is made against him, he must keep his deed for another three years.

One must discuss, in our times, when every plot of land and structure has registration in the tabu (land registry), whether a three-year chazakah is effective against the owners. In practice, it appears that it is not effective: 1) because there is a flaw in the claim, since he did not transfer the apartment in the tabu into his name. 2) Since the property is registered in the tabu in the name of the apartment owner, and through this he can always remove the purchaser from the apartment by means of the authorities — consequently, it is as if the seller had protested, and a three-year chazakah will not be effective. Therefore, the purchaser/recipient will need to keep his deed forever.

One must further discuss a case in which the purchaser cannot register the apartment in the tabu, as is common with a subdivided apartment, an apartment designated for a disabled person, and the like — whether a three-year chazakah will be effective for the purchaser. According to the first reasoning above, we would say that since he cannot register the property in the tabu, there is no flaw, and a three-year chazakah will be effective. But according to the second reasoning, since the property is registered in the tabu in the seller’s name, it is like a protest, and the chazakah will not be effective; he will need to keep the deed of sale forever.

The manner in which one can say that a three-year chazakah is effective in our times without question would be only with land that is not registered in the seller’s name and cannot be registered in the tabu at all. There, a three-year chazakah together with a claim is effective (this is commonly found in construction on a roof without permits and in illegal construction).

Based on the above, let us discuss the following practical question:

A person who lived abroad returned to Eretz Yisrael after several years. He came to the apartment in which his father had lived until he passed away, and now sees that someone else is living there. When he asked him what he was doing in the apartment, the resident answered that he had bought the apartment from his father and had lived there for several years, only that the sale contract had been lost; since he lived there for three years and has a claim that he bought the apartment, the law is on his side.

In practice, according to the two lines of reasoning above, it appears that we remove him from the apartment, since he should have transferred the tabu into his name or at least kept his deed, for registration in the tabu is a constant protest against him, and he should have kept his deed forever.

And the question in another form:

A son lived in the home of his elderly father and cared for and supported him. Over the years, the father’s condition deteriorated, and he moved to a nursing home, where he lived for several years until his passing. After the passing, the other children of the deceased came and asked their brother, who had lived in the home, to divide with them the apartment that was due to them as an inheritance. The son claimed that the father had given him the apartment as a gift during his lifetime, while he was lucid and of sound mind, in return for the extensive assistance and help that he had given him while living in the home.

The son further claimed that since he had already lived in the apartment for more than three years, he therefore has a chazakah, together with a claim, and he need not bring proof for his words.

In this case, one may discuss that the son can claim that he was embarrassed before his father to ask him to transfer the apartment into his name during his lifetime, and therefore the above-mentioned flaw — that he did not transfer it into his name — is not present. On the other hand, the reasoning of the registration in the tabu, which is considered a protest against him, still remains; therefore, in practice, it appears that he must keep his deed forever.

Chazakah of Use

Another form of chazakah is called “chazakah of use.” The difference between the above-mentioned chazakah of real estate and chazakah of use is that in chazakah of real estate, the possessor claims that he bought or received the land itself from the owners; for this, a three-year chazakah is required, and if he claims that he held the land because no one protested against him, he does not acquire the land. But in chazakah of use, the possessor claims a right of use in the land, but not ownership over it. The chazakah is created by his using it in the presence of the owners, such as extending a projection into his fellow’s courtyard (Choshen Mishpat, siman 143), or placing an oven there and raising chickens there (see the Rishonim, Bava Batra 57). The Rishonim disagree whether in such a case three years and a claim are also required, or whether he becomes established in it immediately if no one protested against him. There are five views on the matter —

• The view of the Rambam and those who follow him (chapter 7, halachah 6 of Shecheinim; chapter 8, halachah 1; and chapter 11, halachah 4 there) is that chazakah of use requires neither three years nor a claim.
• The view of Tosafot (Bava Batra 6b, 23, 59) and the Rosh (chapter 1, siman 11; and chapter 3, siman 74) is that three years and a claim are required.
• An additional view is the opinion of the Rivam, that only three years are required, without a claim (Tosafot 23a).
• The view of Tosafot cited in Rashi (Bava Batra 6a) is that a claim is required, but a three-year chazakah is not required.
• The view of the Rashbam (see Tur, siman 153, paragraph 18, and Beit Yosef there) is to distinguish between minor uses, such as inserting beams, for which people are not accustomed to writing a document — in which case a claim is required but not three years — and a significant use, such as opening windows, for which three years and a claim are required.

The poskim brought the first two opinions, and they disagree as to how to rule in halachah: according to the Shulchan Aruch, it is a chazakah even without three years and without a claim; according to the Rema, as the Netivot explained, it is not a chazakah without three years and a claim; and according to the Sema, the Rema was in doubt about this, whether three years and a claim are required. According to the Taz and the Gaon, the Rema ruled that if he is the one in possession, his chazakah is valid (see siman 153, paragraphs 2, 6, 16; siman 154, paragraph 7; and siman 155, paragraph 35).

Since this is a dispute, therefore, as a matter of law, one who holds land through chazakah of use — his chazakah is valid. But if the opposing party comes and removes the possessor and seizes the land, his seizure is effective.

One Who Places a Solar Water Heater on His Fellow’s Roof

If someone installed a solar water heater on his neighbor’s roof, and after some time the neighbor claims that he did not agree to it, though he did not protest immediately, one must discuss whether the solar water heater has the law of chazakah of use, regarding which some say that its chazakah is effective immediately and even without a claim, as above, or whether its law is like chazakah of real estate and it requires a three-year chazakah and a claim.

The Netivot HaMishpat explains (siman 140, se’if katan 20) that chazakah of real estate means that he holds the land itself permanently, and the owner of the house will not use it at all. For this, a three-year chazakah and a claim are required. A solar water heater is something that is ordinarily placed in its location permanently, and its owners’ intention is that they will not use that place permanently for other purposes. Accordingly, a solar water heater will require a three-year chazakah with a claim.

Now, it is explained in the Gemara, Bava Batra (57a), that one who places an animal in his fellow’s courtyard does not have a chazakah. The Ramban there explains the reason: placing an animal in a courtyard has the law of chazakah of real estate, which requires three years and a claim. Only with a projection and a gutter (and in our times — laundry lines and an air conditioner), where one uses only the airspace of the courtyard, is it considered chazakah of use, and he has a chazakah immediately if the owners did not protest against him. But placing an animal is a use of the body of the land, and it requires a three-year chazakah, as above.

This is also the view of the Ri Migash, and it is brought in the Ramban there in Bava Batra; and the Rambam, in chapter 5 of Shecheinim and chapter 12 of To’en VeNit’an, likewise holds that placing an animal in a courtyard is a chazakah in land (though there is some practical difference between them and the Ramban regarding the setting up of a partition; see there).

However, the view of the Raavad in chapter 5 of Shecheinim is that placing an animal in one’s fellow’s courtyard has the law of chazakah of use. See the above-mentioned Netivot for what he explained.

Placing a Caravan in a Private Courtyard

If one placed a caravan in his fellow’s courtyard and claims that he received permission from the owners to place the caravan there for many years, while the owners deny it, one must discuss whether this use is in the category of chazakah of use and he acquired a hold in the place immediately, or whether it is a chazakah of real estate and requires a chazakah.

It appears that a three-year chazakah is required, in accordance with the law of chazakah of real estate, since it was explained above in the words of the Netivot that the definition of chazakah of real estate is that one holds the land itself permanently and the owner of the house can no longer use it. Thus, in the case of placing a caravan, which is a fixed object and the owner can no longer use that place, its law is like a chazakah in land.