THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 105 (Part 4) • Presumptions regarding real estate

We continue with the third was that the occupier may plead that he has good title to the land, by color of title by purchase from a third party who was the true owner at the time of purchase.

(3) The owner brings a lawsuit to evict the occupier. The occupier pleads that he purchased the realty from Levi and occupied it for the three-year period of presumption. The occupier must prove that Levi occupied the realty for at least one day or had owned it. Failing that, he will lose the case brought by the owner if the owner can produce proof that the realty was his. 
Owner brings a lawsuit to evict occupier from the realty. Occupier pleads that he knows that the owner once owned the realty but that he purchased the realty from a Levi, a purchaser from the owner. Although the owner has no independent proof that he was the owner, the admission of the occupier that owner once owned the realty, and later sold it to Levi, and he purchased from Levi, a purchaser from the owner, is an admission that the owner was at one time the owner and he (owner) does not have the burden of proving that he was the owner. 

The sole question before the Beth Din is did the occupier come into the possession of the realty legally, and the three years of presumption will apply. The owner pleads that Levi is a thief and never purchased the realty from the owner. Occupier has no proof that Levi purchased the realty from owner. Beth Din will find in favor of the owner to evict the occupier and the occupier will have to pay for the profits that he took from the realty during the period he was on the realty. The occupier has no cause of action against Levi. since Levi can plead that the occupier did not have to admit that Levi had purchased the realty from the owner. 

If the occupier pleads that he was present when the owner sold the realty to Levi, and Levi then sold the realty to the occupier who occupied it for the three-year period of presumption, then the occupier will win the case of eviction brought by the owner. 

The owner brings a lawsuit to evict the occupier. The occupier in defending against the eviction action of the owner pleads that he purchased the realty from Levi and has occupied the realty for three years. He also produces witnesses to testify that Levi occupied the realty for at least one day. Based on the foregoing, the occupier should win the lawsuit. However, the owner produces witnesses that Levi had offered to purchase the realty from the owner after the time when he was on the realty. Levi pleads that he offered to purchase the realty from the owner just to stop the owner from alleging to all that Levi was not the owner and that he, the owner was the true owner. Levi’s excuse will be accepted by Beth Din. 

The owner brings a lawsuit to evict the occupier. The occupier pleads that he purchased the realty from Levi. The occupier fails to prove that Levi occupied the realty for at least one day, and the owner pleads that Levi stole the realty from him. Or the occupier proves that Levi did occupy the realty for at least one day, but the owner produces proof that Levi stole this parcel of realty. The occupier now proves that before he purchased the realty from Levi he consulted with the owner if he should do so, and the owner told him to do so. The occupier now pleads that if Levi had stolen the realty from the owner, why did the owner advise the occupier to purchase the realty from Levi? The owner will win the case. The fact that he gave the occupier this advice is not enough to change the facts that Levi did not own the realty. His excuse to the occupier is that he thought it would be easier for him to evict the occupier from the realty than it would be to evict Levi from the realty. However, if the owner denies making such a suggestion to the occupier and the occupier then produces witnesses who heard the owner tell the occupier to purchase the realty from Levi. then the occupier will win the case against the owner. 

The owner brings a lawsuit to evict the occupier. The occupier pleads that he purchased the realty from Levi, who occupied the realty for at least one day. and he himself occupied the realty for three years. The owner pleads that the night before he brought the lawsuit the occupier offered to purchase the realty from him. If he already owned it, why would he offer to purchase it again? The occupier will win the case, if he pleads that he wished to spend some money to buy the realty and prevent the owner from continually alleging that the occupier did not have good title thereto and spare himself a lawsuit that might be brought by the owner. 

Rabbi Moses Isserles in his glosses to this law as it appears in Shulhan Aruch adds the following: A person [Reuven] purchased the same piece of realty two times and he demands that the seller [Shimon] refund the second purchase price for the second sale. If the seller [Shimon] pleads that he repurchased the realty from the purchaser [Reuven] after the first sale, and therefore was able to sell it to him a second time, his [Shimon's] plea is accepted. If the seller [Shimon] does not so plead, then the purchaser [Reuven] may explain why he purchased the realty a second time. If he pleads that he did it in error, his plea is accepted.

If he [Reuven] pleads that he knew [that he already owned it] and [nevertheless] purchased it a second time, then the seller [Shimon] will win the case and the second purchase price is deemed a gift from Reuven to Shimon]. 

On January 2, 1998, the owner brings a lawsuit, to evict the occupier from the realty. The occupier pleads that he purchased the realty from Levi, who occupied the realty for at least one day and that he, the occupier, occupied it for the presumption period. The owner counters that he has a deed from Levi dated January 2, 1994, a year before the protest period began. The occupier replies that when he pleaded that he had occupied the realty for the presumption period, he did not limit himself to just three years immediately prior to the commencement of the lawsuit. In fact he occupied the realty for seven years commencing January 1, 1994. Thus he had three years of occupation prior to the date of the deed from Levi to the owner. If the occupier can prove that he occupied the realty for seven years, which includes three years before the deed to the owner, the occupier will win the lawsuit. But if he cannot prove that he occupied the realty for at least three years prior to the deed from Levi to the owner, then the owner will win the eviction lawsuit.

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