Lesson # 236 (part two) • Property of a Proselyte dying without heirs

This is the last lesson dealing with acquiring property, whether real estate or personal property other than by purchase, or by gift, or by inheritance. We conclude with the second part of the topic of a proselyte dying without heirs, what happens to his property. As was shown in the last lesson, his property is ownerless and can be seized by anyone. How is the property seized?

Real estate: (1) of a deceased proselyte that is now ownerless; or, (2) that is otherwise ownerless; or, (3) that can be acquired although paid for when a Jew purchases the real estate from a Gentile and becomes temporarily ownerless can all be acquired by the acquirer performing an act of hazakah (physically improving the prop- erty) that is the same in all three situations. 
All the acts of hazakah to acquire real estate when there is a purchase are also effective when acquiring real estate that is ownerless, with one notable exception: If Shimon eats of the produce of the real estate that is ownerless, he does not acquire that real estate, which under certain conditions may be an act of acquisition in the case of a purchase of the real estate from a seller. He does not acquire the real estate even if he eats of the fruit of the trees for many years. 

Shimon must perform some other act of hazakah on the land or do some work on the trees. The Talmud, Bava Batra 54a, tells of an incident where a woman ate the fruit of a palm tree for 13 years and then some man came along and performed an act of acquisition by doing some work on the tree. The man had acquired ownership of the tree. Therefore, if Shimon finds the field of the deceased proselyte already plowed and Shimon sows it with seed and later eats of the produce, he does not acquire the field. If he covers the seed he acquires ownership of the field.

Conversely; there are acts of hazakah that acquire in the case of ownerless real estate but do not acquire in the case of purchase of real estate from a seller. Here are a few examples, in all of which situations Shimon (or Levi) acquires ownership of the real estate:

a. Shimon comes to a large palace built on the real estate of the proselyte or on other ownerless real estate and he puts on a coat of paint or whitewash or he paints a mural or decoration on the wall opposite the door, and the mural or decoration is at least 1 amah square;
b. Shimon draws a picture on the real estate of a deceased proselyte;
c. Shimon spreads out mattresses or sleeping bags on the real estate of a proselyte;
d. Shimon plows the field of the deceased proselyte;
e. Shimon trims the twigs of vines or the branches of trees or the leaves of trees on the real estate of the deceased proselyte and he intends to improve the trees;
f. Shimon gathers twigs, grass, or stones in the field of the deceased proselyte and he intends the improvement of the field;
g. Shimon levels the field of the deceased proselyte with the intent to improve the field;
h. Shimon opens a water channel onto the land of the deceased proselyte intending to improve the land;
i. Shimon builds a structure on the real estate of the deceased proselyte without completing the entire structure to a point that it is usable, such as not yet having installed the doors to the structure. 

Levi puts on the doors. Levi acquires ownership of the real estate, because only now can the structure be used and thus the real estate acts as the foundation of the structure. If Shimon built a structure that can be used for the purpose that it was built without doors, then the structure is complete without doors and the real estate belongs to Shimon. If Shimon digs a foundation for the structure, there is a difference of opinion if the digging of the foundation is equivalent to improving the real estate.

The part of the deceased proselyte's real estate that is acquired
Shimon performs an act of hazakah to acquire the real estate of the proselyte. If the real estate is one contiguous tract, delineated by boundaries, Shimon acquires ownership of the entire tract the moment he performs an act of acquisition, such as turning a shovelful of earth. If it is not delineated by boundaries, Shimon acquires ownership to the tract by plowing the tract from one end to the other and then plowing another furrow back again.

If the tract of land owned by the deceased proselyte before he died without heirs contained interior boundaries, then if Shimon performs an act of acquisition on one side of the boundary, he does not acquire the area on the other side of the interior boundary. The items that form interior boundaries are generally those listed in the Talmud and subsequent codes, but would include such other boundaries as are now in effect to divide areas within tracts of land. 

The listed dividers are: a designated boundary, a hedge, a river, a rivulet, a ravine, a water-filled ditch, a road (whether public or private), paths (whether public or private) used both in rainy seasons and dry seasons, different types of grasses, and anything that is the custom of a community.
When there is a large tract of land belonging to the deceased proselyte with- out any interior boundaries or any of the other dividers, then Shimon acquires much of the area that is considered as one unit as is associated with the name of the proselyte.

The proselyte dies owning two tracts of land adjacent to each other, tract 1 and tract 2, divided by a boundary line or other divider. Shimon performs an act of acquisition on tract1 to acquire tract 1; he acquires that tract. Shimon performs an act of acquisition on tract 1 to acquire both tracts 1 and 2; he acquires only tract 1. He performs an act of acquisition on tract I to acquire tract 2; he acquires neither tract. There are many such combinations. The next time you are involved in such a situation, please ask your local rabbi for advice.

The subject matter of this lesson is more fully discussed in volume VIII chapters 273 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il.

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