Within His Grasp
‘Title…Is Established In Three Years’
(Bava Basra 28a)
The mishnah on our daf states that a chazaka (a presumption of ownership) is established for houses and other real property by a person occupying/using it unhindered for three years. After such uncontested use, a person may claim the property as his even if he is unable to produce a deed of ownership. He is believed because he could argue that he had a deed but lost it.
Three Years?
Three full years of occupancy is only necessary to establish a chazaka if the one challenging the current occupant’s claim to the property is the previous owner. If the challenger, however, has no proof that he was the mara kamma – the immediate previous owner – the burden of proof falls on him to prove that the property is his.
The Rambam (Hilchos Toen Ve’nitan chap. 14:12) goes even further. He rules that the current occupant of the property is not evicted – even if he has been on the property for fewer than three years – if the challenger cannot prove his ownership.
Exceptions
Though a three-year chazaka is required to prove ownership of real property, for metaltellin (moveable goods), a person only needs to have possession for one day. The Rashbam (42a s.v. “ein lahem chazaka”) explains that this is due to the fact that the sale of goods does not involve documentation.
The Ritva (ad loc.) reasons that, normally, we do not assume that an individual holding an object has obtained it through theft. This assumption, though, only applies to moveable objects.
Under His Control
Rabbenu Yona explains that the rules for real estate and metaltellin are different for the following reason: A moveable object is in a person’s domain, i.e., in his grasp. Therefore, it is in his control, and someone who wishes to exact it from him must therefore prove that it is his.
Real estate, however, is not in a person’s domain. In fact, the opposite is true; he is within the property’s domain. Thus, when the mara kamma claims he never sold his property, the burden of proof is on the individual presently occupying the property to prove that it is his.