Photo Credit: Jewish Press

Mr. Schwartz lived just behind the shul; his backyard bordered the shul’s property. A fence separated the two properties, but Mr. Schwartz left an opening to enable him to walk directly to shul without having to walk around the block.

Other neighbors took advantage of this shortcut, and Mr. Schwartz allowed them to walk through his yard to shul.

Advertisement



One neighbor, Mr. Mandel, had recently moved into town and lived a few houses away. Unfortunately, he got into a heated argument with Mr. Schwartz when he first arrived, and the relationship between them remained strained.

One day, Mr. Schwartz saw Mr. Mandel walking through his yard on the way to shul.

“Who gave you permission to walk through my yard?” Mr. Schwartz yelled. “This is private property!”

“You allow other people from the block to walk through,” replied Mr. Mandel. “I’m no different than anyone else on the block.”

“Well, I don’t want you walking through my property,” replied Mr. Schwartz. “I never gave you permission!”

“But you allowed the shortcut as a public path,” replied Mr. Mandel. “You can’t single me out!” He summoned Mr. Schwartz to a din Torah.

Meanwhile, Mr. Schwartz decided to stop everyone from walking through. His neighbors, though, objected. “You always allowed us to walk through,” they claimed. “We’ve already established our right.”

“The fact that I allowed you passage in the past, does not require me to continue allowing you,” countered Mr. Schwartz.

“Yes, it does,” argued the neighbors. “We’ve been doing this for over three years and have an established chazakah!”

The neighbors asked to join the din Torah between Mr. Schwartz and Mr. Mandel. They all came before Rabbi Dayan and asked:

“Can Mr. Schwartz exclude Mr. Mandel from going through his property? Can he stop all the neighbors now?”

“The Gemara (B.K. 28a) teaches that if someone allowed usage of his property as a public pathway, he cannot retake it and block the pathway,” replied Rabbi Dayan. “The Gemara clearly indicates, though, that the public can acquire this right only with his permission, but he can initially stop people from going through his property” (C.M. 377:1).

“Even if Mr. Schwartz allowed certain people access, this does not prevent him from refusing others. This is not considered ‘middas Sedom’ (baseless refusal to benefit others), since passing through his property entails invasion of privacy. Thus, he can refuse to allow Mr. Mandel to walk through.

“Regarding Mr. Schwartz’s decision to now refuse passage to everyone, there are several limitations to the halacha that precludes blocking a public passage. There are five reasons why it often does not apply, some of which are relevant here:

“1. Some Rishonim require explicit permission given to the public. 2. Some require construction to enhance the passage. 3. The degree of public traffic must be such that we would expect the owner to protest. 4. The ‘public’ must be a large percentage of the people for whom the passage is relevant. 5. If the land is officially registered, we do not presume mechilah. Thus, Mr. Schwartz’s shortcut is not considered a ‘public passage’ that cannot be blocked (see Pischei Choshen, Nezikin 8:32).

“Moreover, even if Mr. Schwartz explicitly granted permission to certain neighbors in the past, many Acharonim write that this does not grant them permanent rights, since the owner also uses the property. We consider them as ‘borrowers’ (sho’elim), and the owner can rescind, especially if their passage is not something that would typically evoke the owner’s protest” (see Ketzos 140:3; Nesivos 140:19; Pischei Choshen, Nezikin 15:24[54]).

“Although some Acharonim disagree,” concluded Rabbi Dayan, “Mr. Schwartz is considered muchzak on his property, so he can refuse passage even to neighbors that he formerly allowed, in accordance with the many Acharonim mentioned earlier.”

Verdict: Mr. Schwartz can allow passage to some neighbors and refuse others. He can even rescind his permission from those he formerly allowed.

Advertisement

SHARE
Previous articleChanukah In Hindsight
Next articleKenyan Police Arrest Iranian Accused of Planning Terror Attacks
Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.