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Shabbat Rosh Hashana | 5770

Hemdat HaDaf HaYomi: Chazaka on Real-Estate

Rav Ofer Livnat

 Elul 24 – Tishrei 1, Baba Batra 23-29

This week in the Daf Hayomi, we begin to learn the third chapter of Baba Batra, which discusses when a person attains a chazaka on real-estate. A chazaka is a form of proof of ownership on an item.  Regarding movable objects, the assumption is that the one holding them is the owner, even if someone else was previously known to be the owner. However, regarding real-estate, the opposite is true:  the original owner is assumed to be the true owner, even if someone else is currently using the property. Therefore, if the person currently using the property claims to have bought it, he must show the shtar (purchase deed) as proof.

When does the person residing in the property attain a chazaka? The Mishna (28a) states that, after a person resides in the property for three years with no objection from the previous owner, he attains a chazaka and is no longer required to show the shtar as proof. The Gemara deals with the question of why a chazaka is attained specifically after three years. The conclusion of the Gemara (29a) is that, until three years, people make sure to keep the shtar, but after three years they often become negligent and lose the shtar.

The Rishonim disagree as to how to explain this conclusion of the Gemara. According to the Ramban (Baba Batra 42a d"h ha detanya), the main reason that a chazaka is attained is because the fact that he resided in the property for so long without objection is proof that he is the owner. However, within three years, since people normally make sure to safeguard the shtar, if he is unable to present it to us we are suspicious of him. However, after three years, since the lack of a shtar is no longer suspicious, we rely upon the fact that the previous owner did not object, as proof.

The Ktzot Hachoshen (140, 2) proves from several Rishonim that they understood the conclusion of the Gemara differently from the Ramban. According to their opinion, the Sages realized that people tend to not safeguard the shtar for more than three years, and they were concerned that the previous owner would wait until the current owner would lose the shtar, and then come and claim that the property is still theirs. Thus, they instituted that, after three years, the person residing in the property attains a chazaka. 

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