Sam Berger and Moti Farber shared a two family house, with a joint driveway in front. The Farbers had an extensive family, whereas Sam was relatively young and just recently had his fourth child.
For the past ten years, Moti had built a large sukkah that covered almost the entire driveway, whereas the Bergers would spend the holiday with their parents.
This year however, was different. As Sukkos approached, Moti saw Sam measuring the driveway with a tape measure and some wooden beams. “What are you measuring?” Moti asked.
“Our family is beginning to grow and it’s getting harder to stay at the parents for all of Yom Tov,” said Sam. “We’re planning to build a sukkah this year.”
“How big a sukkah?” asked Moti.
“Eight feet square,” said Tom.
“Is there enough room left in the driveway with our sukkah?” asked Moti.
“That’s what I was checking,” replied Sam. “Unfortunately, it doesn’t seem so.”
“So where will you build it?” asked Moti.
“That’s what I’m trying to figure out,” said Sam.
“Why don’t you build your sukkah in the back of the house?” asked Moti.
“It’s not convenient there,” replied Sam. “It means walking around the back all the time.”
“What’s the other option?” asked Moti.
“I’m going to have to ask you to make your sukkah somewhat smaller,” said Sam, “and leave me room in the driveway.”
“But I can’t do that,” protested Moti. “Even with the big sukkah we’re tight, and our married daughter and son are both coming for the first days with their seven children.
“I’m sorry about that,” replied Sam, “but I’m entitled to my share of the driveway just as you are.”
“But you allowed me years ago to build the sukkah there,” argued Moti. “I’ve been building this sukkah for ten years!”
“I never said I gave you permission forever,” answered Sam. “I was happy to allow you to build your sukkah there so long as I didn’t need the space, but not when I also need the space.”
“But I’m established there,” said Moti. “You can’t make me move!”
“The fact that we didn’t need a sukkah in previous years,” replied Sam, “doesn’t mean that we relinquished our rights!”
“If you had no other place I’d understand,” said Moti. “But just because the back is not as convenient is no reason to ruin our Sukkos plans. It’s going to be very hard to fit into a smaller sukkah.”
“You can make it a little smaller and squeeze a bit,” said Sam. “It’s not fair to expect us to use the backyard.”
“We need to discuss this with Rabbi Dayan,” said Moti.
“Agreed,” said Sam. “Let’s make an appointment with him. I’ll give him a call.”
The following evening, Sam and Moti met with Rabbi Dayan in his study and presented their case.
“Uncontested usage of a property for an extended time can indicate ownership or usage rights of that property,” said Rabbi Dayan. “This is known in halacha as chazaka. Everybody agrees that to indicate ownership of the property requires three years of steady use and a legal basis for the claim of ownership. Usage or squatting alone does not make something yours.” (C.M. 140:7)
“I am not claiming sole ownership of the driveway, though,” said Moti, “just usage rights to continue building my sukkah as is on the joint property.”
“That is true,” said Rabbi Dayan. “Typically, though, one partner does not protest if the other partner makes temporary use of the joint property. Therefore, the fact that you used the driveway for many years to set up your sukkah does not establish a chazaka of usage rights. Only if you were to build a permanent wall or affix anchors in the driveway could you possibly establish a chazaka.” (140:15; SM”A 140:22; Shach 140:20)
“There is an additional reason why building a sukkah cannot serve as a chazaka without some permanent element,” added Rabbi Dayan. “Sam continued to use the driveway for the rest of the year. Many authorities maintain that one cannot establish even a chazaka of usage rights when the other party also uses the area.” (See Ketzos 140:3; Nesivos 140:19, 153:12; Emek Hamishpat, Shechenim, p. 39.)
“There was nothing permanent put up all these years,” said Sam. “The sukkah was constructed and completely dismantled each Yom Tov, and we share the driveway the rest of the year.”Rabbi Meir Orlian