Alongside Mr. Frankel’s home was an alley that was mostly on his neighbor’s property. For decades, Mr. Frankel had been using this alley as a passageway to get to his backyard.
The neighbor finally decided to retire and move to Israel. He sold his home to Mr. Stein, who planned to completely renovate the building and extend it almost to the property line.
One day, when Mr. Stein was standing outside with his architect, Mr. Frankel greeted them.
“Welcome to the neighborhood!” Mr. Frankel said.
“Thank you, but it will take a while till we move in,” replied Mr. Stein. “We’re planning extensive renovations.”
“A lot of people are doing that nowadays,” Mr. Frankel acknowledged. “What kind of renovations are you planning, if I may ask?”
“First, we’re expanding the building on the side and back,” answered Mr. Stein. “We’d like to maximize use of the property and build out to the property line.”
“Oh, do you mean also between us?” asked Mr. Frankel.
“Yes, on your side, as well,” replied Mr. Stein.
“I’m not sure if you know,” Mr. Frankel said, “but I’ve been using the alley between our homes to get to my backyard for decades. The former neighbor never had a problem with it and essentially allowed us exclusive use of the alley. If you extend the building, you will render the alley very narrow and make it unusable.
“It was nice of your neighbor to allow you use of the alley,” responded Mr. Stein, “but did you ever buy the rights to that strip of property?”
“I never bought them,” replied Mr. Stein, “but I believe that his agreement all these decades affords me rights that you should not ruin by extending the building!”
The two called Rabbi Dayan and asked:
“Is Mr. Stein allowed to build out despite Mr. Frankel’s use of the alley for decades?”
“There are three issues to consider,” replied Rabbi Dayan.
“The first is meitzar shehecheziku bo rabim. The Gemara (Bava Basra 100a) teaches that a person may not ruin or block a pathway through his property that the public adopted with the owner’s permission. However, this does not apply here, since Mr. Frankel’s use was only for individuals. Furthermore, there are several limitations even for a pathway adopted by the public, which we addressed ten years ago in the article, “Public Passage” (C.M. 377:1; 417:2).
“The second is chazaka, established ownership rights. The Mishna (Bava Basra 28a) teaches that a person who exclusively used a property for more than three years claims that he acquired it, even though he cannot produce evidence. However, this applies only when he claims that he bought or explicitly received the rights but lost the deed or contract. This does not apply here, since Mr. Frankel does not claim that he explicitly acquired the rights (C.M. 140:1,7).
“The third and most relevant issue is chezkas tashmishim or chezkas nezikim, established usership rights. If a person uses another’s property regularly, this can indicate tacit agreement by the owner. Rambam and Shulchan Aruch maintain that this does not need a claim of acquisition, and is considered as the owner’s mechila – forgoing – of his rights.
However, this applies to a potentially damaging use of the property – something the owner would typically protest. Regarding a use that is not damaging, which the owner has no real reason to protest against – as the use of the alley in our case – his silence does not indicate mechila of his rights. Furthermore, Rashbam and Rama maintain that chezkas tashmishim also requires a claim of acquisition (C.M. 153:2,13; Nesivos 140:19; Pischei Choshen, Nezikin 15:24).
“Thus, Mr. Frankel cannot prevent Mr. Stein from expanding,” concluded Rabbi Dayan. “Nonetheless, there are zoning laws that define how close to the property line one can build, which should be adhered to because of dina d’malchusa and minhag hamedina.”
Verdict: Mr. Stein is permitted to expand, despite Mr. Frankel’s previous use of the alley.
