THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson #104 (PART 3) • Presumptions regarding real estate

The period of presumption will avail the occupier only if he complies with the requirements for occupation. Should he fail to comply with these requirements he will not obtain the right to the land, since it is presumed that the owner had no reason to protest. 

The failure to properly occupy the land will preclude the presumption even in the situation where the owner admits he sold the occupier a parcel of land but denies that it is the parcel that the occupier is occupying. 

There is a sharp difference of opinion among the authorities regarding the type of proof required to establish the occupancy for the period of presumption in dwellings. According to one view the occupier must produce witnesses who can testify as to his general occupancy, and if the owner pleads specific times that the occupier was not there, the occupier must have specific proof as to those times. Even if the owner pleads upon information and belief failure to occupy at all times, the occupier must be very specific in his proof. Furthermore, according to this view, if the owner is a person whose business takes him out of town a great deal of the time, Beth Din will raise these pleas on his behalf. According to this opinion it is very difficult to establish the period of presumption in dwellings. Unless the occupier leaves friends or family in the dwelling while he is out of town, he may very well not be able to prove the period of presumption of occupancy.

The other opinion is that the occupier must present proof in general terms that he occupied the dwelling as is the usual way for persons to occupy a dwelling. If this can be shown, the period of presumption will be established. Most of the authorities follow the latter opinion. 

If the owner can show that he occupied part of premises and used it for whatever purposes he desired, the occupier will have to produce convincing proof to overcome the presumption that the owner did not sell him the premises. 

Commercial establishments are usually occupied only during the day and the occupier will only have to prove occupancy during business hours for three years, although there is also an opinion that under certain circumstances he would have to prove occupancy for six years during business hours. If the occupier occupies part of his neighbor's premises for three years and admits that he did not purchase the part occupied by him, but had obtained permission or had purchased the right to use the area, whether or not he fenced off the area so occupied by him, he obtains the right to use that area forever. The same would apply to jointly held property if the partners are very careful not to permit any partner to have exclusive use of any of the property and this person had exclusive occupancy of part of the premises. 

There is also a presumption of ownership of seats in a synagogue. Thus, if occupier can prove that he occupied the same seat in the synagogue for three years at all times when he attended the synagogue, he will have occupancy of that seat. If the custom of the synagogue is to place the names of the owners of the seats thereon, such a nameplate remaining undisturbed will act as a deed to the seat. Also, if the synagogue maintains a ledger with the names of seat owners such entries in such ledger is presumptive proof of ownership of the seat. 

The occupier cannot obtain a presumption in his favor after the three-year period unless he claims that he obtained the realty from the owner by sale or by gift (or that he inherited the realty). 

Thus the most common occurrence of the presumption coming into effect will be as follows: 

Occupier is on the land. 
Owner brings a lawsuit to evict the occupier. 
Occupier: "I purchased the land from you, Mr. Owner." 
Owner: "Where is the deed that you allege I gave to you?" 
Occupier: "I lost the deed." 
Occupier produces two witnesses that he was on the land for three years in accordance with rules of occupancy. 
Beth Din: "We find in favor of the occupier based on the presumption and the claim of the occupier that he purchased the land, and based on the fact that the owner made no protest during the three years." 

If the occupation is not accompanied by a claim of color of title, the occupier's presumption cannot stand, no matter how many years he occupied the realty. For example, after the occupier has been on the realty for many years, the owner approaches him and asks, "What are you doing on this realty? It is mine." The occupier replies, "I have been on the realty for many years and no one objected, and therefore I remained there." This does not raise a presumption in favor of the occupier as against the owner, although he has been there openly for more than three years. The occupier did not plead that he purchased the realty from the owner. 

When the trial is taking place in Beth Din, the judges may not ask the occupier leading questions, such as, “Did you ever have a deed that you lost?" The occupier must raise such a defense on his own. Nowadays most litigants have attorneys representing them in Beth Din and thus he attorney for the occupier will raise such a defense. He may raise such a defense at any time in the proceedings, although he did not originally plead such a defense. This is not classified in the category of changing pleas which is not permitted.

The occupier produces a deed on which he bases his defense in the eviction action. It turns out that the deed is a forgery, or void for some other reason. He has lost his color of title, and he cannot have a presumption in his favor even though he was on the realty for more than three years. 
The fact that the occupier does not have a presumption is not to say that the owner will win the case and that Beth Din will eject the occupier from the realty. The owner still has to produce witnesses that the realty is his. If the owner produces such witnesses he will obtain a judgment with two parts: ( 1) eviction of the occupier from the real estate; and (2) a money judgment that the occupier pay the owner for all of the profits that he made from the real estate. 

The topic of color of title and how it is pleaded will be discussed IYH in the next lessons.

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