Bava Basra, Chapter 3, Mishnah 6. We continue to deal with the laws of chazakah, but here a different type of chazakah enters the picture - chazakas tashmishin, which means the right to make use of a certain thing. Even in this, the Rishonim argue about how it works.
Two ways of understanding chazakas tashmishin:
The approach of the Bartenura: The chazakah works in a way identical, or very similar, to the chazakah of houses and property rights. A person makes use of his neighbor's airspace for three years without protest, and when the neighbor raises an objection, the user claims: "You permitted me to do this, and the proof is that you did not protest over the last three years." A claim explaining why the use is lawful is therefore required, and the three years serve to verify and support the claim.
The approach of the Rambam: It is not a matter of three years, nor even of a claim. Once a person has made a certain use of a thing and the neighbor has not complained, it is understood that the neighbor has waived his rights - and this happens long before three years, even in that very same year, and there is no need for an accompanying claim. This is merely a type of taking possession, about which the one holding it says: We are neighbors, and since you did not complain, it is apparent that this was acceptable in your eyes, and therefore I am allowed to continue with what I have done until now.
It is worth noting that this is a dispute between the Mechaber and the Rema: the Rema rules like the approach of the Bartenura, while the Mechaber rules like the Rambam. We will explain the concepts according to the Bartenura, who is our hero here.
The case scenario:
Two neighbors, Reuven and Shimon, and Reuven built his house right on the property line. Reuven is located entirely within his own property, but the wall facing Shimon directly touches Shimon's property, to the extent that any object hung on this wall is situated in Shimon's airspace. The problem is that Reuven does things like this: hanging objects on the wall, opening windows, installing gutters, and the like into Shimon's airspace or facing his direction, thereby encroaching on his property and privacy. The question is whether, after three years without complaint, following the Bartenura's approach, Reuven can say: "You permitted me this sometime in the past, and the proof is that for the last three years you did not complain."
The essential point here is: things that we would expect Shimon to protest about are what create a chazakah, because why did he not protest for three years? In contrast, things that are not considered a big deal, which one can overlook in the meantime and even not protest about for three years because he did not care - regarding these, Shimon could raise a claim even after four years and say: "I did not protest in the first three years because it was not a big deal, but now this bothers me for some reason, and therefore I am asking you to remove it."
Mazchilah and marzev:
The first case in the Mishnah deals with rainwater channels. Reuven, whose house is adjacent to the property line, wants to install a channel that will run along his roof:
"Mazchilah" - the rainwater channel that collects rain along the roof, from the word "zachal" - to flow and crawl. This channel hangs in Shimon's airspace, but it does not really bother him.
"Marzev" - the downspout, through which the water descends from the mazchilah to the ground, like a drain. "Mar" meaning a drop, and "zav" an expression of flowing, that is, a pipe for the flow of raindrops. The marzev allows the water to pour into Shimon's property.
In the words of the Mishnah: "Hamarzev ein lo chazakah, veyeish limekomo chazakah" - the downspout has no chazakah, but its location does have a chazakah. The very existence of a downspout pouring into Shimon's backyard is a bothersome thing, and therefore if Shimon did not protest for three years - there is a chazakah for it, since he should have complained if he objected. This is the meaning of the Mishnah "yeish limekomo chazakah" - the general location of a downspout in Shimon's yard anywhere at all. While "hamarzev ein lo chazakah" refers to the specific spot in the yard, which has no chazakah.
Consequently, if Shimon says after three years: "I want you to stop pouring your water into my yard," Reuven will answer him: "There was an agreement between us three years ago, and the proof is that you did not complain all those years." But if Shimon says: "I want you to move the pipe from the southern end to the northern end, because I want to plant petunias in the place you are flooding with your water" - his claim is accepted, since he can claim: "North or south did not matter to me, and it made no difference to me at the time, but now it does matter to me." Moving a downspout from one place to another is not a big deal, and therefore he did not protest or pay attention to it. In contrast, the very existence of a pipe in its general location in Shimon's yard is definitely something worth protesting about, and Shimon could and should have protested about it years earlier if he truly objected to it.
However, a mazchilah, the horizontal gutter that catches the rain and is suspended in Shimon's airspace, does establish a chazakah. Shimon should have protested, and since he did not protest for three years, Reuven can say, "I have a right to be here."
Egyptian Ladders and Tyrian Ladders:
The next part of the Mishnah deals with a ladder. The scenario is the same: Reuven has a structure touching the property line, and he places a ladder allowing access to the roof - to the place where he dries his produce or where his dovecotes are located. The commentators disagree on the exact scenario. According to the Bartenura, it refers to a ladder resting on the ground, a sort of small step stool in Shimon's territory. Other commentators, including Rashi, wondered about this: We already learned that a person objects to others placing their objects on his property, and if so, Shimon would certainly object to a ladder resting in his courtyard. Therefore, they explain that the ladder must be attached to the wall, and the access to it passes through Shimon's airspace. The question is, then, whether one can object even to this.
The Mishnah distinguishes between a small ladder and a large ladder, calling the small one an "Egyptian ladder" and the large one a "Tyrian ladder" - named after the city of Tyre, in the area of modern-day Lebanon and Phoenicia. The exact origin and reason for these names are unclear:
Egyptian ladder - three rungs or fewer. It does not establish a chazakah. Even if it stood for three years, this does not establish a chazakah of usage, since Shimon might not have made an issue out of it because it is small and insignificant.
Tyrian ladder - four rungs or more. It does establish a chazakah, whether it is attached to the wall or resting on the ground, since it is reasonable to expect that Shimon would object to the placement of such a large ladder on his property. Since he did not protest for three years, and Reuven claims, according to the Bartenura, "You permitted me to be here three years ago," he is believed, for how could Shimon not have complained until now?
Egyptian Windows and Tyrian Windows:
The next case deals with windows, and according to the Bartenura, they are much more problematic than anything else we have seen, because windows violate a person's privacy. The scenario is the same: Reuven has a property bordering Shimon's airspace, and now he wishes to open a window in his wall, which will allow him to look into Shimon's courtyard. This violation is severe, as Shimon can no longer spend time in his courtyard as he wishes for fear that Reuven is watching him.
Here too, the Mishnah distinguishes between small and large, and here too, the names are "Egyptian" and "Tyrian":
Egyptian window: A very small window, one into which a person's head cannot fit - truly a small hole. It is not intended for looking out but for letting in air, and it is also raised four amos or more from the ground, meaning it is not at eye level. Therefore, when Reuven walks past it, he does not look into Shimon's courtyard, since the window is located high up toward the ceiling, and there is no immediate or ongoing violation of privacy here.
Tyrian window: A large window, which allows Reuven to look inside easily, immediately violating Shimon's privacy.
Therefore, the Bartenura deduces that in these cases, Shimon can be expected to protest immediately, as he would not suffer for years while Reuven looks into his courtyard. It is a "now or never" situation: he will protest immediately, and there is no need for three years. Others learn that here too, the matter depends on three years.
And the words of the Mishnah are: "Chalon hamitzris ein lah chazakah, velatzuris yesh lah chazakah" - an Egyptian window does not establish a chazakah, but a Tyrian window does establish a chazakah. The Egyptian window does not establish a chazakah because it is assumed to be standing there only temporarily - it was common practice for them to make a hole for air and move it to another location another time; and in any case, moving it is no big deal, and there is no violation of privacy. However, the Tyrian window does establish a chazakah, and according to the Bartenura, even immediately, since Shimon would not have allowed Reuven to build a new window looking into his private courtyard and violating his privacy. The Mishnah continues and defines: "Eizo hi chalon hamitzris? Kol she'ein rosho shel adam yachol lehikanes letochah" - what is an Egyptian window? Any window into which a person's head cannot fit - a very small ventilation opening.
Rabbi Yehudah disagrees and says: "Im yesh lah malben, af al pi she'ein rosho shel adam yachol likanes letochah, harei zo chazakah" - if it has a frame, even though a person's head cannot fit into it, it establishes a chazakah. That is, even a small window that meets all the criteria of an Egyptian window - that the head does not fit into it and it is raised more than four amos - if Reuven installed a frame in it, an official frame indicating that the window is meant to remain permanently, this tells Shimon clearly that the item is going to remain, and he must protest. And if he did not protest - the window has established a chazakah.
Two reasons to object to a window:
Loss of privacy: The window allows Reuven to look into Shimon's courtyard.
Loss of building rights: Reuven builds a window to let light into his house, since we are dealing with a world before electric lightbulbs. We already learned in the second chapter that if Reuven has a right to a window, Shimon is not allowed to build a wall within four amos of that window, to infringe on the privacy of Reuven's house or to block his light. Therefore, Shimon will say: "I do not want you to build your windows, and not just because of the invasion of my privacy, but even if there were no privacy issue - it still restricts my building."
There is a major practical difference in this matter: Had Shimon thought the window was temporary, he would have left it for the time being so that Reuven would remove it later. However, from the words of Rabbi Yehudah, we learn the matter clearly: From the moment Shimon sees that Reuven intends to leave the small window in place permanently, he objects immediately. This is because on the day he wants to build in his backyard, he will not be able to do so, since Reuven will claim that he is blocking his light. Therefore, he does not allow him to build it even now, so as not to get into this trouble.
A projection:
The final part of the Mishnah deals with a projection, which is any type of protrusion - a peg or a shelf and the like. Reuven's wall faces Shimon's side, and Reuven wants to affix small projections to it, which would allow his children to climb to the roof, or upon which he could hang items - laundry to dry and so on. There are two problems with this: The pegs intrude into Shimon's airspace, but if they are elevated above where he walks, this is not a severe infringement; however, the projection allows the children climbing on it to go up and down and look into Shimon's courtyard, thereby violating his privacy.
The Mishnah states: "Ad tefach yesh lo chazakah, veyachol limchos" - up to a handbreadth, it establishes a chazakah, and he can object. The word "up to" is slightly confusing, since one might have thought it refers to a maximum measurement, but its intention is a minimum measurement: one handbreadth or more, meaning a large shelf protruding from the wall. Such a projection has a chazakah, and if it stood for three years, we assume Shimon agreed to it, as he should have complained. Likewise, Shimon has the right to object and say: "I do not want this here, since you are invading my privacy, and I do not want your children going up and down and looking at me in my courtyard."
However, "Pachos mi'tefach ein lo chazakah, ve'ein yachol limchos" - less than a handbreadth, it does not establish a chazakah, and he cannot object. With a tiny peg, upon which no one stands, but is rather a small hook for hanging laundry to dry or a hanging planter and the like, and its use is occasional - this is not the sort of thing Shimon would normally object to, and he is not even allowed to object without a good reason, for how does it harm him? It does not obstruct his path, and is nothing more than a small item that allows Reuven to hang things on his wall.
However, if Shimon did object at some point, he can force Reuven to remove it. The assumption is that hanging clothes to dry from time to time is not a big deal, but if Shimon argues: "It is a big deal, since you are constantly peeking at me, or you are hanging things on the peg that truly bother me" - he has the right to object at any time, even after many years. And since there is no chazakah here, Reuven can be forced to stop using the peg or to remove it.
In summary: In this Mishnah, we learned about chazakas tashmishin (a presumption of usage rights) and the two ways to understand it - the approach of the Bartenura (three years along with a claim) and the approach of the Rambam (immediate waiver without a claim), which is a dispute between the Rema and the Mechaber. The emerging rule is that a chazakah is only created for things that one would normally object to. Hence the four cases: The spout - there is a chazakah for its general location but no chazakah for its specific location, whereas a gutter does have a chazakah; the ladder - an Egyptian one does not have a chazakah and a Tyrian one has a chazakah; the window - an Egyptian one does not have a chazakah and a Tyrian one has a chazakah, and according to Rabbi Yehudah even a small window that has a frame establishes a chazakah, and the objection to it is both due to privacy and due to building rights; and the projection - a handbreadth and above has a chazakah and he can object, and less than a handbreadth does not have a chazakah and he cannot object.