Can you acquire land merely by using it?

Question

The mishna in Kiddushin 26a talks about how one acquires property. It considers two cases, property that can be used for security (collateral) and property that can't. Land is in the first category.

It says that for items in the first category, one acquires the property by money, deed, or hazikah ("or", not "and"). I understand from the notes in my edition (Soncino) that hazakah means using the land in some way -- plowing the field, for example.

This made me wonder about adverse possession, a secular legal concept that if you publicly use property long enough without anybody objecting, it's yours, even if you can't show proof of a transaction.

This post at DIN Online says that halacha does not have the concept of adverse possession. It also goes on to say that real estate is acquired only by proving abandonment and by kinyan. It doesn't cite any sources.

We don't go to the mishna for halacha, I know, and I'm missing a lot of context. But I'm curious about the contradiction. Per halacha can one acquire property through use, without kinyan, deed, or money? If so, what are the general parameters (time limits, etc)? If not, on what is the halacha based?

(My gut feeling is that adverse possession isn't consistent with torah, but I'm seeking something more reliable than that. :-) )

Answer 1

Hazaka only works with the original owner's consent.

Rambam, Laws of Sales Chapter 1:

א,ז [ח] כיצד בחזקה: מכר לו בית או שדה, או נתן אותן מתנה--כיון שנעל או גדר או פרץ כל שהוא, והוא שיועיל במעשיו--הרי זה קנה.

א,ח במה דברים אמורים, בשהחזיק בפני המוכר. אבל שלא בפני המוכר או הנותן, צריך שיאמר לו לך חזק וקנה; ואחר כך אם החזיק--קנה, אף על פי שאינו בפני הבעלים.

Acquisition via hazaka [manifesting active ownership] is done how? Suppose one fellow sells or gifts a house or field to another: as soon as the recipient locked, fenced, or demolished any part of it -- assuming this was some manner that accomplished improvement -- the recipient has acquired it.

In what circumstances was this stated? When the action was taken in the presence of the seller. But if the seller/gifter is not present, s/he must say: "go use it and take possession!", at which point doing so would acquire it even absent the owner's presence.

א,ט המוכר בית לחברו, ומסר לו את המפתח--הרי זה כמי שאמר לו לך חזק וקנה; וכשיחזיק, יקנה.

One who sells a house to another and hands him the key -- it is as if he has said: "go take possession and acquire it!", and thus as soon as the recipient does hazaka, he acquires the house.

Answer 2

"that if you publicly use property long enough without anybody objecting, it's yours even if you can't show proof of a transaction."

There actually is such a concept in Halacha. It's also called "Chazaka", here in its common meaning of "legal presumption".

That is, if you can prove that you used the land for three years in a row, you do not need to prove you acquired it. It basically means there is a limit to what we call today a requirement to keep records.

What we do not have is squatter's rights; if you in fact did not acquire it, then you are a thief, regardless of how long you lived there.

What I do not know is what would happen if the property really appears to be abandoned. (If it was actually declared ownerless (hefker), then of course it can be acquired.)

Answer 3

I will tray to give a different response (see my 2 comments above). A first step is to talk about the topic with a minimum of technical terms. A deed of acquisition is generally a symbolic act, a speaking act. When mister A acquires an object Ob. from Mister B, there is a kind of scenography: from the hand of mister B to the hand of mister A, from his territory to the territory of the acquirier, maintain mastery^[1].
Generally when mister A has some object in the hands or lives in a house, it seems that it is his object and his house.
When mister A says to Mister B "I sold my house to you, take possession!" Mister B get in and changes the locks, the gates of the courtyard, for example. This is a deed of acquisition (purchase) called Chazaka.
But if mister B lives in a house 10 years up today, and one day, suddenly, mister A comes with a proof that 20 years before mister A sales contract which states that mister A acquired the house from mister C 20 years ago.
If mister B says, "yes it was your, but I bough it! The act of sale has been misplaced and I just cannot find it anywhere^[10]". witnesses are coming and say that mister B was here during all these years, and nobody ha objected. B is right.
But if B says, "I don't know, nobody said me to go out!", the house returns to mister A. B's presence and activity are obviously not an act of acquisition (so, no adverse possession^[20]). But in the first example context, as a result of a decision, it would be: If A says, "make this and this and it will belongs to you!".
An additionnal case: If nobody has proof of anterior possession, nobody can contest the presence of mister B (he is more than any other the homeowner, despite he can not proof his possession). Nor a case: If mister B discovered a new Island, he sets foot on the soil, he surrounded the Island with walls and he were the owner.
So the word "Chazaka' describes a kind maintain of control over an object (an effort to maintain). So the use of the word is multiple because the symbolic impact of the situation may change following according to the diverse contexts.

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[1] Two example of Chazaka (kidushin 22b (Soncino)):

MISHNAH: A HEATHEN SLAVE IS ACQUIRED BY MONEY, DEED, OR BY HAZAKAH
GEMARA: ... Our Rabbis taught: How [is a heathen slave acquired] by hazakah? If he unlooses his shoes for him [the purchaser], or carries his baggage after him to the baths; if he undresses, washes him, anoints, scrapes, dresses him, puts on his shoes, or lifts him, he acquires him. R`Simeon said: Let hazakah not be greater than lifting, for lifting acquires everywhere. What does he mean? - Said R`Ashi: [The first Tanna implies,] if he [the slave] lifts his master, he acquires him; if his master lifts him, he does not acquire him. Thereupon R`Simeon observed: Hazakah should not be greater than lifting, seeing that lifting acquires everywhere.

Baba Batra 52b, 53a.

R`Hoshaia learned in the [Tractate] Kiddushin edited in the school of Levi:(11) If he [the buyer] does anything at all in the way of setting up a door or making a fence or an opening in his [the seller's] presence, this constitutes a title of ownership. Are we to suppose that this is only [the case if the act is done] in the seller's presence, and not otherwise? - Raba replied: The meaning is this. [If the act is done] in his presence, he has no need to say [to the buyer], Go, occupy and acquire ownership;(12) but [if the act is] not [done] in his presence, he must say, Go, occupy and acquire ownership.

[10] BB 29a (Soncino)

Raba therefore correcting himself said: For the first year a man is not particular about another man usurping his field,(6) nor is he particular for the second year, but the third year he is particular.

[20] op cit. 41a

MISHNAH: THE FACT OF POSSESSION IF NOT REINFORCED BY SOME PLEA OF RIGHT DOES NOT OF ITSELF CONFER A TITLE OF OWNERSHIP.

Answer 4

This is a really a comment (which I am not entitled to make). The OP says chazaka is "using" the land. I think the correct term is "improving" the land. Just using the land is I think a machlokes, (perhaps Rambam and Raavad) regarding spreading out things on a rock, and perhaps only when there is no real way to "improve" it.

Regarding chazaka and rov. Chazaka is considered a "hanhogo'. Meaning since we dont know what to do we will keep to Chazaka. That usually means we will leave things stands as they were till now. Sometimes it can mean "chazaka d'hashto" we will keep to what it is now. Rov either "leisa kamon" but better if "eisa kamon" is considered a "birur" meaning where there are ten shops it definitely came out of the "rov" shops and therefore is stronger than chazaka. This is a case of "eisa kamon". "Laisa kamon" is like a person is not a "soris" (a eunuch) since rov people are not. This subject is one of the hardest in shas. The kzos in shev shmatsa and R Shimon Shkop (at one time head of YU) in shaarai yosher discuss it at length.

I think also there is a misconception here between chazaka of kinyan and chazaka of three years. Chazaka of kinyan has to be improving the land. Chazaka of three years is not a kinyan but a proof that there once was a kinyan and that is good enough if you just use the land.