THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 102 Presumptions regarding real estate

With this lesson we commence a series of lessons regarding ownership of real estate.

This lesson and the following lessons, deal with disputes over ownership of real estate (designated herein as the "land"). The dispute is between the present occupier, who pleads that he is the "new owner" and the person who is known to have been the owner of the land. The present occupier of the land shall be designated as the "occupier" and the presumed owner of the land shall be designated as "owner," although the occupier now pleads that he is the new owner of the land. The occupier may sometimes plead that he purchased the land from a third party, who is designated herein as "Levi." Most often the parties to the lawsuit are occupier and owner.

In the last two lessons the ownership of personal property are discussed. The person in possession of the personal property is presumed to be the owner. In realty, however, the ownership is presumed to be in the last known owner until the occupier can prove otherwise.

In halachah, mere occupation of land for an extended period of years does not not give the occupier title to the land as it does in some other legal systems, where it is sometimes called adverse possession.

Land that is known to have belonged to the owner may be possessed by the occupier in either of two ways. It may be under color of title or under claim of right. Under color of title, the occupier alleges that he legally came into possession of the land, by, for example, purchasing the land or receiving it as a gift from the owner or from Levi, or that he inherited the land from the true owner. In a system where deeds are not recorded the occupier may plead that he has lost the deed, or even if deeds are usually recorded, the occupier may plead that he failed to record his deed and he cannot locate his deed to prove that he is the new owner. If, however, the claim of the occupier is a claim of right, he does not allege that he purchased the land or received it as a gift or inherited it from the true owner. Instead he admits he occupied the land without purchase or gift and that he claims superior title to the land to all the world except as to the rightful owner. In those legal systems that recognize legal acquisition of land and valid title in the occupier by adverse possession after a certain number of years, the occupier after fulfilling this period of time will also become the legal owner even against the former real owner, without claiming a color of title.
In halachah the occupier can only claim title to the land if he pleads that he originally came into possession of the land by purchase or gift from the owner or from Levi, who legally acquired it from the owner, or that he inherited the land, which was owned by his family.

The Beth Din applying halachah has to weigh the claims of the owner against those of the occupier. In the usual case the owner has a claim that he is the owner of the land and it is admitted by the occupier that the owner did indeed at one time own the land. The owner pleads that if the occupier came into legal possession of the land let him produce his deed to the land. The occupier responds that he did at one time receive a deed from the owner but that he lost the deed. The occupier further pleads that if he was occupying the land illegally the owner would have moved to evict him from the land Since the owner did not protest the occupier's occupation of the land for a period of three years from the time that the occupation began, the occupier did not consider it necessary to take care of his deed. Beth Din now has to weigh these conflicting claims and theories and decide to whom to give ownership of the land. The general rule is that, if under color of title,the occupier occupies the land for a period of three years (herein designated as the “presumptive period”) without protest from owner, then it will be presumed that he did indeed once legally acquire the land from the owner.

Two distinct reasons are given for relying on the period of presumption to prove that the occupier did indeed purchase the land from the owner. The First Reason is that a purchaser of land is not expected to watch his deed for more than three years. It is presumed that a person will take care of his documents for a period of three years, but not necessarily for a longer period. (The Rabbis established the three-year rule in that a person may tolerate a trespasser on his land for a short period of time, that is, up to three years, but if he tolerated this trespass for three years or more he is not really the owner.) If the former owner protests within the three-year period after the occupier first began to occupy the land that the occupier is illegally on the land of the owner, then the occupier should be on notice that he will have to defend a lawsuit for trespass and will then have to keep his document.

The Second Reason is that an owner of land will not stand idly by for a period of three years while an illegal occupier takes the profits and uses his land. If this reason is controlling then it will take three years of crops to act as an estoppel against the former owner, who alleges he did not sell the realty to the occupier. If it is the type of field that can be grown at any time, then the occupier can grow his crops even at times when others do not grow theirs, and thus he could wait until the end of the three years to grow his last crop. What if the field or orchard is of a type where three crops grow in less than three years? Might therebe a shorter period of presumption? It is assumed that there is a rainy season in the region and that crops can be planted whenever water is available.

The laws in these lessons are generally not substantive laws, but rather laws of pleadings.

Real estate is always presumed to be owned by the last known owner. Even if someone else is occupying it, the presumption of the owner is still there, since the occupier might be a trespasser. The presumption in favor of the owner arises if it can be shown that he was the owner for even one day, even if it was not certain that it was his, but that he or his father had possession for at least one day, such as by working the land. The ownership may arise from a generally well-known reputation that it belongs to the owner.

Land is known to be in the ownership of owner, and the occupier is now on the land for less than three years, using it and taking its profits. Owner brings a lawsuit in Beth Din to evict the occupier from the land; occupier in his answer to the complaint of the owner alleges that he purchased it from owner, and owner denies such sale. Owner takes a hesseth oath and wins the case and can evict the occupier.

The subject matter of this lesson is more fully discussed in Vol. V, Ch.140 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il