We are beginning the third chapter of Tractate Bava Basra, known as "Chezkas Habatim". The chapter deals with the concept of chazakah - a term that is not easy to translate. Generally, it can be translated as "status quo", but for the purposes of the first part of the chapter, the most appropriate translation is "presumption of ownership".
Chazakah in Movable Property:
When two litigants stand in Beis Din arguing over who owns a pen, the rule is "hamotzi mechaveiro alav haraayah" - the one coming to extract the pen from his fellow must bring proof that the pen is his. This means that there is a party who is presumed to be the owner: he is called the "muchzak", and this presumption of ownership is called "chazakah".
And who is the muchzak of the pen? It is the person who currently holds the pen in his hands, since his claim is: "The pen is mine, and the proof is that I am holding it; if the pen is yours, what is it doing in my hands?" The one arguing against him, who seeks to extract it from his hands, will be forced to say: "My pen is in your hands because you stole it, and the proof is - two witnesses saw you take it." He must bring proof that it is a stolen pen, and until he brings it, the chazakah is that the one holding the pen is its legal owner. This is how the halachah works with movable property.
Chazakah in Land:
With real estate, the rules are completely different. There is no way to physically hold a farm in one's hands; the one holding it is the one living on it and managing its agricultural operations. When two people come to Beis Din and each claims "the farm is mine", Beis Din cannot ask who is holding it now. Although there is someone sitting there now and functioning as its farmer, against him stands the "mara kamma". This term, which literally means the first owner or the previous owner, is worth knowing: it refers to the person who we know for certain was, at a given point in time, the verified and established owner of the farm.
The mara kamma can claim: "This is my farm, and you are trespassing on it." The current possessor, the tenant or the farmer sitting on it, cannot reply, "If the farm is yours, what is it doing under my feet?" - because the answer is right there: your feet entered and trespassed onto my farm. The very possession of the land through physical occupation and settling on it does not prove ownership, since it is possible that he entered and trespassed onto it when the owner was not around.
Therefore, the rule is that the presumed owner of a field, and of any land, is the original owner, the mara kamma. And if the possessor currently sitting on it claims "it is now mine", he must bring proof. And what is the proof? The deed of sale - the contract proving that he bought the land. And if he cannot produce it, Beis Din will say to him: "You are a squatter in this field; if it is indeed yours, where is the proof? Where is your deed?" - for everyone has a deed. Because of this, Beis Din views the mara kamma as the muchzak, and not the possessor sitting on the land, who has the status of a squatter.
For how long is the possessor required to keep his deed?
This does not last forever. At a certain point, the possessor will answer the question of where the deed of sale is: "What are you talking about? This happened many years ago, and the deed is lost. I cannot be expected to keep it on hand forever; time has passed, I do not know where it is, and this does not mean the field is not mine." Will this claim hold up? The Sages say that it does hold up, but only after enough time has passed. Once enough time has passed, it is reasonable to say: "I lost the deed because too much time has passed and I did not guard it carefully, and I cannot be expected to keep it forever."
The topic of our first Mishnah is, therefore, how much time needs to pass. For once enough time has passed, and the possessor claims "I lost my deed", he turns to the mara kamma and says: "If this is indeed your field, where were you all these years? How is it that you did not come sooner?" This is the give-and-take between the parties: in the first few years, when the mara kamma demands the return of the field, the property, or the house, the possessor must prove that the property is his by virtue of a deed of acquisition; but once enough time has passed, the situation flips, and the possessor says: "I no longer know where my deed is, I lost it; but where were you all these years, and why did you not protest sooner? You certainly knew very well that you sold it to me in the past."
Two Conditions for Establishing Chazakah in Land:
Prolonged occupancy without protest: The occupier must remain on the property long enough without the prior owner complaining, expressing concern, or protesting his presence - whether directly to him, in rabbinical court, or before a third party, since the rumor would then reach the ears of the occupier: "My ownership is being challenged, I had better keep my document in a safe place to fight for it in court."
Knowledge of the prior owner: The prior owner must be aware that the occupier is trespassing on his property, so that he has the opportunity to protest. If the prior owner answers the question "Where were you all these years?" by saying: "I spent six years fighting a war in a distant land, and obviously I had no idea you were invading my field; I returned and found you here" - this is a reasonable response, since he was unable to protest because he was not around and did not know there was an invader.
The second Mishnah of the chapter will discuss the parameters of knowledge and the ability to protest on the part of the prior owner. The first Mishnah, however, deals with the question of how long the occupier can sit on the property until he is no longer expected to keep the document proving he bought it.
Properties that yield benefit throughout the entire year:
"Chezkat habatim" - establishing a presumption of ownership over a house. People live in a house three hundred and sixty-five days a year and pay rent every day, and this is the benefit of living in it.
"Vehaboros vehashichin vehame'aros" - reservoirs for storing water: The bor is round, the siach is long and narrow like a trench, and the me'arah is a square spring covered with a roof. Water is drawn from them throughout the year.
"Vehashovachos" - dovecotes in which doves and pigeons are raised, and their use continues all year round: for fertilizer, for the animals, and for eggs.
"Vehamerchatzaos" - bathhouses, whether public ones rented to others or private ones; people bathe in them every day.
"Uveis habadim" - an olive press.
"Uveis hashelachin" - an irrigated field, which has a water source such as a spring or an irrigation system, and therefore can be cultivated throughout the year. In contrast, the beis haba'al, which relies on rainwater, will be discussed later.
"Veha'avadim" - slaves, who work and produce every day.
Seemingly, one should wonder about the olive press: why should it be considered a property used all year round? After all, usually, once the olive harvest ends - which is once a year in the summer - everything is pressed and the olive oil is obtained, and in the second half of the year the press stands idle.
Part of the answer is that for economic reasons, olive owners wait and store their fruits in order to press them later at a cheaper rate, or to rent someone else's press, and so the usage is greater. In addition, the presses were also used for other materials: besides olive oil, nut oil and sesame oil are pressed in them, and nuts and seeds can sit on the shelf all year, so their use continues throughout the entire year. Therefore, olive presses are rented and in use at all times. In contrast, the winepress is not mentioned here, since treading grapes and collecting wine is a once-a-year activity.
The unique status of slaves:
Slaves are not real estate and not completely movable property, but rather their status is in the middle. In many contexts, by virtue of scriptural derivations, there is a juxtaposition equating slaves to land, and even the way they are acquired is similar to buying a field rather than buying a movable object like metal. However, the matter here is different: since slaves move under their own power, the claim "What is your property doing in my domain?" is not acceptable regarding them, for one can answer: "My slave is hiding in your basement, and that is how he got into your domain."
Everything that moves on its own is included in this category, and the technical term for this is "goderos", meaning flocks - since this law applies to a flock of sheep just as it applies to a slave. These things move from place to place, and therefore there is a possible explanation for their presence in the hands of the occupier: the bees flew from one domain to another and established a hive in another's territory, and they do not become his because of this. And so too with a slave: the very fact that he is physically located in another's domain does not remove him from his owner's ownership, since it is possible that he ran there on his own.
For this reason, the acquisition of slaves is usually done with a document. There is a bill of sale, and therefore the buyer is expected to keep the document confirming the sale and proving that the slave is his. And slaves work and produce every day, and therefore their chazakah is three years of daily use.
It turns out that for any property that provides value throughout the entire year - including commercial real estate, a store rented to others, or a place used for production - in order to establish a chazakah on it and become the presumed owner, three years of use, presence, and utilization of the resource are required. The meaning is three full years from day to day, from the 17th of Cheshvan to the 17th of Cheshvan, three years on the calendar; and this is because the use of these properties is every single day, consistently throughout the year.
Beis haba'al - a field that relies on rainwater:
A field that is not irrigated and relies solely on rainwater produces a crop every year, but not year-round, since it dries up once the rains stop. Establishing a chazakah and becoming the muchzak of the land also requires three years here, but not three full years from day to day. How much, then, is required?
The View of Rabbi Yishmael:
Rabbi Yishmael says that three incomplete calendar years are sufficient: using the field for the last three months of the first year, all of the second year, and the first three months of the third year. In this manner, the occupier produces three separate crops, and these are the three crops required to establish a chazakah. This refers to a regular grain crop or a legume crop, a proper crop in every respect, which takes three months to grow. The rest of the time - the beginning of the first year and the end of the third year - is insignificant, as he would not have used the field during those months anyway, and there is no reason to assume the owner would come and protest specifically then.
The View of Rabbi Akiva:
Rabbi Akiva is more lenient: even one month is sufficient - the last month of the first year, all of the second year and the last month of the third year, making fourteen months in total. The reason is that the occupier is not obligated to grow a large, regular three-month crop in the first and third years, like grain, wheat or barley, but may grow a fast-growing crop, like vegetables or wheatgrass used for fodder to feed animals. In one month the wheatgrass grows and can be harvested, and once again it is considered as if he used the field three times and no one complained, and from this point onward the burden of proof shifts to the other side. After all, the mara kama, seeing the occupier harvesting in his field for the third time, would have protested if the field were truly his.
Chazakah in an Orchard:
Rabbi Yishmael goes even further. "Bameh devarim amurim" - To what do these words apply? To a white field, an open field where grain and the like are grown on the ground. "Aval bisedeh ilan" - But in an orchard, a field with trees, the entire chazakah could potentially occur in one calendar year, since it has three crops and three separate harvests.
"Im kanas es tevuato" - If the occupier brought in his grape harvest; "his produce" here refers to the grape harvest, and we find this usage in Scripture, such as in the Book of Devarim regarding the laws of kilayim of a vineyard, where grapes are called "produce of the vineyard." "Umasak es zeisav" - And he harvested his olives. "Vechanas es kaitzo" - And he gathered his figs.
Three separate harvests were carried out in the orchard, and on all three occasions the mara kama did not utter a sound. Therefore Rabbi Yishmael says: "Harei elu shalosh shanim" - These are three years. Halachically this is equivalent to three calendar years, since the occupier went through the harvesting process three times, and three times no complaint or objection was raised by the mara kama. In his view the current occupant can claim: "I thought no one was complaining and that everything was fine, and therefore I lost my document."
Halachah:
The halachah does not follow Rabbi Yishmael, nor Rabbi Akiva, but rather the Chachamim, who reject these views completely. For the sake of simplicity they established a sweeping rule that three full calendar years are required - for all types of fields and all types of real estate, whether they are used year-round or only for part of it. Exactly at the completion of three years from the day the occupier entered the property, he becomes the muchzak, and the burden of proof shifts to the mara kama, to explain why he did not protest earlier.
In summary: In this section we analyzed the concept of chazakah: with movable property the muchzak is the one holding the object, whereas with land the muchzak is the mara kama, and the one residing on it is required to present a bill of sale. We saw that after enough time has passed the burden of proof flips, and this requires two conditions - occupying without protest and the knowledge of the mara kama. We learned the list of properties that yield benefit year-round: houses, pits, trenches and caves, dovecotes, bathhouses, olive presses, irrigated fields and slaves, for which the chazakah is three full years from day to day; and the dispute between Rabbi Yishmael and Rabbi Akiva regarding a rain-fed field and an orchard, which was rejected in favor of the view of the Chachamim, who require three full calendar years for all types of real estate.
In the next section, we will discuss the second Mishnah, the parameters of the original owner's awareness, and the option of protest available to him.