Within His Grasp
‘Title…Is Established In Three Years [Of Occupancy] From Day To Day’
(Bava Basra 28a)
The Mishna on our daf states that a chazaka (a presumption of ownership) is established for houses and other real property through their being occupied/used unhindered for three years.
After such uncontested use, one may claim the property as his even where he is unable to produce a deed. He is believed in such circumstance because he might argue that he had a deed but lost it.
Three Years?
The need for a full three years of (day-to-day) occupancy to establish a chazaka is only necessary where the challenging (i.e., current) occupant is the previous owner. On the other hand, if the person coming to challenge the occupant has no proof that he was the mara kamma – the immediate previous owner, then the burden of proof falls on him.
Rambam (Hilchos Toen Ve’nitan chap. 14:12) goes yet further: Even in the event where the individual admittedly only recently moved onto the property, unless the challenger can prove his ownership, the individual is not evicted from the property.
Exceptions
Though a three-year chazaka is required to prove ownership of real property, this rule does not apply to metaltellin (chattel, i.e., moveable goods). This rule applies even where the individual is only in possession for one day.
Rashbam (42a s.v. “ein lahem chazaka”) explains that this is due to the fact that the sale of goods does not involve documentation.
Ritva (ad loc.) reasons that, normally, we do not assume that an individual holding an object has obtained it through theft. However, this assumption only applies to moveable objects. As relates to real property, there is a burden of proof.
Under His Control
Rabbeinu Yona explains the difference. Simply put, the moveable object is in the person’s domain, i.e., in his grasp. Therefore, it is in his control – in his ownership. One who wishes to exact it from him has the burden to prove otherwise.
However, as regards real property, this is not physically within his domain. Just the opposite – 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.
