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Ruling: [This week we will look at whether a squatter who admits he has no rights in a property can be removed from it by one who claims but has not proven that he has rights.]
First, note that one who has been in a property for years but does not claim that he formally acquired rights, cannot use the rights of chazaka (Bava Batra 41a). However, the Shulchan Aruch (Choshen Mishpat 146:9) paskens like the Rishonim who say that only one who can prove that he has valid claims of ownership can remove the squatter. On the other hand, there are apparently contradictory passages in the Shulchan Aruch, as CM 146:22 implies that others cannot remove the one who is in the property only if the latter makes a clear claim of rights to it. The latter approach is also in line with the Rama (CM 222:4) who rules that if one admits to having sold his field but does not remember to whom, he can be removed by anyone who claims he bought it. We will cite some opinions on how to reconcile the sources.
1. Knesset Hagedola – The squatter’s right to stay until someone brings proof applies only when the squatter has been on the property for three years. 2. Aruch Hashulchan – the squatter has a right only when it is possible that he has acquired it from hefker. 3. Netivot Hamishpat, Kehillot Yaakov – the squatter cannot stay if he entered the property after the one making claims started his claims. The major sources seem to agree that one’s entering the field must have been in a manner that does not have indications of impropriety in order that he can stay.
In our case, def entered prp after pl had demonstrated their claims of control; def were also there for less than three years and do not have a claim that they may have received it from hefker. Therefore, def cannot stay in prp even until pl proves that their claims are true. Def’s claim is further weakened by the fact that their commitment in writing to pay pl for using prp only strengthens pl’s right to exercise their rights in relation to def.
P'ninat Mishpat (832)
Beit Din Eretz Hemda - Gazit
779 - P'ninat Mishpat: Proof Needed to Remove a Squatter – part I
780 - P'ninat Mishpat: Proof Needed to Remove a Squatter – part II
781 - P'ninat Mishpat: Proof Needed to Remove a Squatter – part III
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Beit Din Eretz Hemda - Gazit
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