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Ruling: Assuming there was an agreement, acts of kinyan finalized it. However, the question we must ask is whether one can halachically acquire rights to extra parts of a property without Tabu, which Israeli law (Chok Hamekarka’in par. 7b) requires for finalization. Some poskim (including Mahari Basan, Igrot Moshe) say that the law negates otherwise halachic acquisition because this falls under the concept of dina d’malchuta. Others (including the Chazon Ish and Rav Z.N. Goldberg) posit that dina d’malchuta cannot undo Torah-level kinyanim in this manner. Our beit din’s approach is that the law is binding, but only in cases where it is necessary to protect the rights of one who bought land in reliance on Tabu.
In our case, according to the first approach, it suffices that def had control of the courtyard for three years to prove there was a binding agreement. Even according to the second approach, this case is different from the classic case of missing Tabu, because the apartments are indeed registered properly. Therefore, no third party has the power to come in and remove from the property occupants claiming ownership. Even the Israeli courts recognize ownership without Tabu in cases they deem to be exceptional enough. Since in the area of this building, it is standard to make internal agreements without official documentation, the agreement is binding.
Regarding who has to prove if there was full agreement, there is an apparent contradiction in the Rambam. The Knesset Hagedola distinguishes between cases in which the one acting like the owner did so openly, which def did. According to Netivot Hamishpat, the one who acts on ownership does not need proof regarding damages, but to obtain positive rights, he requires proof that the previous owner saw and relinquished rights. In this case, this would seem to support pl. However, in this case, there is enough evidence that pl and his predecessors in the apartment went along for decades with def’s control.
[Beit din went into depth to show from testimony of others and proofs from documented interactions between the sides that def acquired ownership of the courtyard, as pl had on the roof.]
P'ninat Mishpat (832)
Beit Din Eretz Hemda - Gazit
793 - P'ninat Mishpat: Overpaying Rent by One of the Roommates – part II
794 - P'ninat Mishpat: Who Has Rights in the Courtyard?
795 - P'ninat Mishpat: Spillover of Courtyard Dispute
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Beit Din Eretz Hemda - Gazit
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