Lesson # 157 (part three) • Sales of Real Estate by Deed or Hazakah

In the previous lessons we discussed how real estate is acquired in halachah by money. We now discuss how it is acquired by deed or by hazakah.

First by deed. Nowadays it is presumed that in halachah a deed to real estate effects the transfer of ownership unless the deed explicitly states that the transfer was by another method and the deed is only being given to prove the transfer by one of the other methods of transfer. 

The deed may be made of any material, even if it will not last beyond the time of delivery of the deed from the seller to the buyer. Once the deed has been delivered it does not matter if it is thereafter lost or destroyed. The deed must state that the seller transfers ownership of the real estate to the purchaser. There is no requirement that there be witnesses on the deed, nor that there be witnesses present when the delivery of the deed is made. If the real estate is of the type that the seller is anxious to dispose of, ownership to the real estate is transferred from the seller to the buyer at the moment when the deed reaches the hands of the buyer. If the seller is not all that anxious to dispose of the real estate until he is fully paid, ownership is transferred when the buyer pays for the real estate, even though the deed has been delivered to the buyer in the presence of witnesses. 

By hazakah: Ownership can be transferred from the seller to the buyer by hazakah. This method can be employed whether the transfer is by sale or by gift. However, this transfer without a deed and without the payment of money is valid only if the seller does not make demand for the money for the sale of the real estate, and the buyer does not demand a deed to effect the transfer of ownership. Agreement of the parties, if there is one, is binding and can reflect whether they want hazakah by itself to effect a transfer, or do not want hazakah by itself to effect a transfer until money is paid and/or a deed is given by the seller to the buyer. Hazakah is perfected by the buyer: (1) in the presence of the seller, (2) doing an act to the real estate or the building that he is acquiring, (3) which act results in an improvement to the real estate or the building. As soon as the act of hazakah is completed on even a small fraction of the real estate, the buyer is the owner of the entire real estate. 
The act of hazakah must be performed in the presence of the seller since his intent to transfer the real estate is a prerequisite to transfer and acquisition by hazakah. If it is not so performed. it does not result in the buyer acquiring the real estate. 

There are exceptions to the rule of the prior paragraph. If the seller states to the buyer, "Go, perform an act of hazakah, and acquire", it is the equivalent to the seller being present when the act is performed. Similarly if the seller gives the buyer the key to the premises with instructions to lock the door and the buyer then locks the door, he has performed an act of hazakah. 
Beth Din must determine in each instance if there has been an act of hazakah to rise to an act of acquisition. Some of the following rules will aid Beth Din in making its determination. 

The buyer, or his agent, may do any number of things that will show that he is performing an act of hazakah to enable him to acquire ownership of the real estate. Some examples given in the Talmud and the codes are the following: the buyer places a lock on the door; the entrance to the house or yard is open and the buyer locks it and opens it; he makes a bolt for the door; or he places doors on the house and locks them. All these are acts of hazakah.

The buyer may construct a partial fence around the real estate. He may make an addition to a fence, if the addition in height makes it more difficult for an outsider to climb over the fence. If the fence is less than ten tefachim high, (about 38 inches) he should bring it up to height of ten tefachim.
He may break through a fence to create a new opening. The example given is where the fence has a small or narrow passage to enter the premises and the buyer enlarges the opening so that one may more easily enter the premises. 

There are times when the buyer placing or removing a small rock will be deemed an adequate act of hazakah. For example, by placing a small rock in the path of a small stream the buyer may conserve the water on the premises by preventing the water from flowing off the premises. Or he may remove a small rock that was blocking water from flowing onto the premises, or he may make a small channel to divert the water onto the premises, which water is beneficial to the premises. However, if the act he did is to prevent damage to the premises, then this is not an act of hazakah. For example, he places a rock in the way of a stream to prevent flooding on the land, or he takes away a rock to open a path so that the land will not be flooded. 

Ordinarily, walking across apiece of land to be acquired is not an act of hazakah. There are some exceptions. For example, if the seller sells a pathway through a vineyard to the buyer, since the purpose of the path is for walking on it, the buyer can perform an act of hazakah by walking on the path.

If the real estate is solid rock that does not lend itself to planting seed, and it does not need improvement of the fence or enlargement of an opening, then, if the buyer spreads fruits or vegetables there to dry or places his animal there, it is a sufficient hazakah. There is also an opinion that this is not a hazakah. 

If the buyer himself makes up the bed in the house or in the field and sleeps in the bed, or sets up a table and eats on it, or places his belongings or fruits or vegetables there in a pile, then these acts qualify as acts of hazakah. There is also an opinion that this is not a hazakah since it does not enhance the real estate. 

If the buyer plows or sows the real estate, or does any other act necessary for fruits or vegetables to grow, or harvests the fruits and vegetables, or trims the trees, or levels the soil, or fills in ruts in the earth, or digs a well to water the earth, or does any similar act that an owner of real estate does, it is a sufficient act of hazakah to acquire the real estate. If he puts up a fixture in a house, repairs broken things in the house, builds a shed. digs a foundation for the house, or does anything that Beth Din determines is of benefit to the house or premises, it is an act of hazakah. 

There is an opinion that if the seller gathers the fruits of the real estate and gives them to the buyer it is an act of hazakah, since the seller has shown that the real estate now belongs to the buyer. 

The subject matter of this lesson is more fully presented in Volume VI Chapter 191 & 192 of"A Restatement of Rabbinic Civil Law" byE. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. 
Questions to quint@inter.net.il

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