THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 106 • Protesting the Occupation

The last few lessons described a person (Reuven) who occupied real estate, a house or an apartment or farmland etc. The person who is known in the community to be the owner (Shimon) goes to Beth Din to evict the occupier (Reuven) from the real estate. Reuven pleads in Beth Din that he bought the real estate from Shimon and lost the deed that he received from Shimon and the witnesses to the transaction are dead or out of the country.

Reuven relies on having occupied the real estate for three year after he allegedly purchased the real estate from Shimon. If Reuven can prove that he occupied the real estate for three consecutive years after he claims he bought it, he will win the case in Beth Din and the claim of Shimon to evict Reuven will be dismissed. That is unless Shimon did something during the three year period to protest the fact that Reuven is on his, Shimon’s real estate.

This lesson deals with the question what can Shimon do during that three year period to show that he is the Shimon is the owner and not Reuven, the occupier? 

The three-year period of presumption in favor of Reuven the occupier is based on the fact that he is not required to safeguard his deed for a period of more than three years. Once Shimon the owner makes a protest, it serves as a warning to Reuven the occupier that Shimon the owner denies the sale to occupier, putting him on notice to safeguard his deed for another three years from the time that the protest is made. Therefore. the protest breaks the presumption of the occupier. The filing or registering of a notice of pendency of action against occupier, as provided for in many countries, may be an adequate protest under the concept of dina dinalchuta dina, the law of the land followed in certain civil laws. The protest made by owner may be made in the absence of occupier. It may even be made in a faraway country if there is any communication and travel between the two places.

The protest must be made in the presence of at least two persons, although they need not be present together at the same time. The two persons may be very old and sick and unlikely to ever get to see occupier to inform him of the protest made by owner. It is assumed that these two persons will inform other persons, who in turn will inform other persons until word gets back to occupier. If made in the presence of only one person it is not a valid protest.

It is not a valid protest if made in the presence of only the occupier, even if occupier admits that the protest was made in his presence alone. There is also a dissent that holds that if the protest is made in the presence of occupier, then it should have put him on notice to safeguard his deed. 

Even if the two persons in whose presence the protest is made state that they will not inform anyone of the protest, it is still valid. Even if owner tells the two persons not to tell occupier, or the two persons state that they will not inform occupier, it is still a valid protest.

However. if owner tells the two persons that word of the protest should not come out of their lips, it is not a valid protest and the presumption of occupier is not voided.

Nowadays it may be sufficient to make the protest in the presence of the two persons and instruct them to send a telegram, a registered letter, or a facsimile letter or email or other electronic devices to occupier. The protest must be made by the person who is known to be the owner of the land. If he obtained the land secretly. then his protest is of no avail since it will not be taken seriously. It is a valid protest if the owner, in the presence of the two persons, states. Reuven who is now on my land is a robber and I intend (to sue him to get him off my land. The protest is also valid if owner states that Reuven is there under a lease, or under a mortgage, and "if he claims that he purchased it from me, or that I gave it to him, I shall sue him in Beth Din:' or any words to the same effect. If owner merely states, "Occupier is a thief:” it is not a valid protest, since occupier can state that these words merely indicated to him that owner was angry with him, or was claiming some other theft, but not that he would sue him regarding the land, and therefore he did not safeguard his deed. 

The protest that is made in the presence of two persons may be (but need not be) reduced to writing by them, even though owner does not instruct them to write it down. The writing should indicate that they are writing it as agents of owner. If it does, the writing will itself constitute adequate evidence of protest, absent their oral testimony.

If owner sold the land in question to Levi with a deed within the three-year period, then the sale acts a protest, and occupier must safeguard his deed, which he alleges he received from owner. 

If the protest is made within the first three-year period of occupier's occupation, it must be repeated again at least one day before the expiration of another three years, and within every three years thereafter. If more than three years have passed since the last protest, then a subsequent protest is not valid to void the presumption in favor of occupier. 

If the multiple protests made by owner are consistent and timely, then they void the presumption in favor of occupier. If the protests are not timely made or are inconsistent, then the presumption of occupier is not voided. For example, the first protest states, 'The occupier is robbing me of my land," and the protest made in the second three-year period states, 'The occupier is on my land by virtue of a mortgage, and has not purchased the land from me."

The second protest is an admission that the first protest was false. Thus, neither protest is accepted. But if both protests were in the same three-year period, then the second protest is accepted. 

The requirement to make the protest within every three years applies only if the original occupier is still there. But if the protest is made while the original occupier is still there and occupier thereafter sells the realty to Levi, then no further protest is necessary since Levi could not have acquired title against owner.

The subject matter of this lesson is more fully discussed in Vol. V, Ch.143 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