Lesson # 341 • Partition of Real Property Reuven and Shimon own a tract of land as joint owners. They could have become joint owners in any number of ways. For example, they may have purchased the land as joint owners, or they may have inherited the land, or it was given to them as a gift, or Reuven purchased his interest in the land from another person who was a joint owner with Shimon in the land. Or Reuven and Shimon may have simultaneously acquired the land which was ownerless having been abandoned by its former owner. All that we say in this lesson regarding land applies as well to personal property owned by Reuven and Shimon as joint owners. Reuven and Shimon are not in a business of owning the land or personal property, because then they would be bound by the terms of their partnership agreement, or by the custom of the community, if there was no partnership agreement. Also there is no agreement that prevents the joint owners from exercising their rights to partition the real estate or the personal property. Reuven wants to divide the property so that each will own one-half in his own right without owning any part of the property that the other will receive by partition. Reuven cannot demand partition if the parties have agreed by kinyan (binding agreement) that they will not demand partition. Neither can Reuven, if he purchased his half-interest in the property from Shimon and agreed at the time of purchase that he would not demand partition. Reuven may not demand partition if the land or personal property jointly owned them is being held for business in which they are partners unless their partnership agreement, or lacking such an agreement, local custom, so provide. Even if the dimensions of the land is not large enough for Reuven to demand partition and enforce partition, he may do so if the use of the land has been effectively divided between the parties, such as each using a specific half of the land. They may have commenced using different halves by express consent or by usage. They may have to partition the land so that each may build a wall to prevent the other from looking into his land. Even when there is no overlooking harm, Reuven can demand partition and put up a fence between the divided parts of the land. Reuven can demand partition of the land only if it has certain minimum dimensions. The ultimate test is that if the land is partitioned, the part that Reuven and Shimon each receives will be recognized as distinctive, separate, usable tracts of land. The halacha sets definite criteria for such a test. The part that each receives must be at least four cubits square, or about 49 square feet. (Although there are differences of opinion I have used the calculation that holds a cubit to be 21 inches.) This is exclusive of the 49 square feet that each party in the yard has in front of his door opening into the jointly owned yard. In the case of jointly owned agricultural field, it must be large enough to sow 18 quarts of seed in each half of the field after it is partitioned. In the case of a garden it must be large enough to sow one quart of seed in each half of the garden after it is partitioned. In the case of an orchard, it must contain at least 36 trees for each half of the orchard after it is partitioned. These dimensions are guidelines for land that has a high yield, as in the Land of Israel. In other lands Beth Din shall determine the dimensions taking into account whether it is economically feasible to work such a parcel of land after it has been partitioned. In the case of personal property, the test is not how big the thing is but rather can it be effectively divided. If there is a disagreement between the parties, the Beth Din must decide if partition can be demanded or the parties must avail themselves of the sell or buy option (see the next lesson IYH). The same applies to living things, such as a cow owned jointly by Reuven and Shimon; the cow cannot be cut in half and therefore partition will not be a remedy but rather the sell or buy option is a solution. Instead of only two joint owners there are three joint owners. Reuven, Shimon and Levi, who as joint owners own a piece of land containing 150 square feet. Reuven and Shimon own forty percent of the land each and Levi owns twenty percent. Should they divide the land Reuven and Shimon will each receive sixty square feet, more than the 49 square feet required for one joint owner to demand partition. But Levi will receive only 30 square feet, which is not sufficient for Reuven and Shimon to demand partition against the wishes of Levi. Levi may prevent the partition since his part of the land will be less than 49 square feet. If prior to partition, Reuven had sold his part to Dan and Naftali each receiving twenty percent and upon partition each would receive 30 square feet. (It does not matter how Reuven's share came to Naftali. It could have been by sale or gift or through inheritance. If Levi or Shimon demands partition, neither Dan nor Naftali may prevent partition since their interest comes from Reuven who could not have prevented partition. However, the converse is not true. Reuven and Shimon each owns a 40% interest in the 150 square feet and Levi owns a twenty percent interest. Thus upon partition Reuven and Shimon each receives 60 square feet and Levi only 30 square feet and thus Levi can prevent partition. Assume that Levi sold his 20% interest to Reuven, and Shimon demands partition. Reuven pleads that he purchased Levi’s interest with all of Levi’s rights; since Levi could have prevented partition so should Reuven be able to so plead. The halacha is that Reuven cannot so plead. That which has been said relating to partition was in regards to land. Regarding houses there is not an agreed upon minimum area that must be left to Shimon in the house for him to agree to partition. There is an opinion that there must be the same 49 square feet and there is another opinion that there must be at least 73½ square feet. Beth Din should in each case determine if the house can be partitioned so that each half can be used as a separate unit. Next week, IYH seats in a synagogue and partition. The subject matter of this lesson is more fully discussed in volume V chapter 171 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 [The Parshat D'varim Homepage]
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