by Rabbi Yair Hoffman for the S’fas Tamim Foundation
Recently, we have been reading about a 90 year old Rabbi, Rav Meyer Leifer, and his family, who took in a 67 year old woman into his 2-bedroom Manhattan apartment, at the beginning of the pandemic because she had no place to go. She is still there on account of the New York Squatters Laws.
It is a powerful indictment of our legal system and the need for fairness and truth.
The idea is further clarified by Rabbi Nosson Ordman zt”l, the former dean of Yeshiva Etz Chaim in London, England. “And these are the laws that you shall place before them.” (Exodus 21:1)Rav Meir Leibush ben Yechiel Michel Weisser (1809-1879) better known as the Malbim, explains the words of Tehillim (19:10) “Mishpetai Hashem Tzadku Yachdav – the judgements of Hashem are true and righteous together” to apply to the laws of the Torah and how they are fundamentally different than the laws of other nations. The Malbim further explains that the depths of truth inherent in the Torah’s laws and the punishments for not keeping those laws are beyond our ability to fully comprehend.
Rav Nosson Ordman ZT”L, a student of the great Lithuanian Yeshiva in Telze, and the Rosh Yeshiva of Yeshiva Etz Chaim in London, England, helped clarify the words of this Malbim (see Sefer Nosson Da’as p. 252). He explains that the criminal justice systems of the nations of the world are designed only for “Takanas Hamedinah”- to preserve and sustain the social culture and ethos of that particular society. However, they are not necessarily designed to be inherently true and just or to sustain and promote the truth. The laws found in the Torah are fundamentally different. They are designed and exist to exemplify the truth and to promote its ideals.
For example, one of the backbones of the Western world’s system of justice is “Adverse Possession.” Adverse Possession is one of the concepts that is taught in the first year of law school in almost every law school in the United States.
According to the Legal Information Institute (housed in Cornell University), “Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations.”
In other words, by merely being on someone else’s land for a certain continuous time period – the “squatter” can actually become the legal owner. In New York State, the time period is 10 years, but next door in New Jersey it is 30 years. In California it is 5 years (but the squatter also has to pay the taxes on it). In Illinois it is 20 years, but in Florida it is 7 years.
These squatters can become legal owners of property with no claim of having bought it from the owner. This “Squatter’s Law” is a fine example of a law that is not designed to stand for truth and what is just, but merely as Rav Ordman says above, for Takanas Hamedina with each state arbitrarily choosing the amount of time the squatter needs to live on someone else’s land before they can legally take it from the owner.
This is absolutely not the case in Jewish law which is designed to embody truth and justice. In Jewish law, one generally needs an actual claim of sale in order to obtain ownership.
Rav Ordman concludes his explanation of the Malbim referenced above with the following two thoughts. We must distance ourselves from any matter of deception, and we should focus our thoughts on praising the Master of All that he did not make us like the nations of the world, as we say in the prayer of “Aleinu L’Shabayach”. This means that unlike the other nations of the world, He implanted within us everlasting life and gave us a Torah (and its laws) that embodies Emes – the truth.
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It’s dinei mamanos. Even in Jewish law a locale can establish creative rules of ownership etc.
And for sure Dina dimalchusa can be established in such a way (even being that the preference is a different law).
Also, it functions as a condition of title/occupancy, and as such a buyer/renter is in effect in agreement. So yes, ownership/occupancy can be Halachically affected without another action. It is akin to the fulfilment of a condition included in the original agreement/title.
Also, just as a country has eminent domain, they can do this (and do so without an additional utility of transfer), and being that it relates to dinei mamanos, it does fall under dina dimalchusa Dina, as one is allowed to agree to such conditions of ownership/occupancy, so there is no conflict with Halacha in being required to follow these conditions, furthermore, it is more akin to the locale applying eminent domain and then awarding the property etc to the other, in which case utility of transfer is a moot point, as is whether the original owner chooses to “disregard” the dina dimalchusa, as it goes into affect anyway, and his objections are merely an objection to an operation that inherently happens anyway.
And again, it is within the rights of a government to have such conditions of title etc, on the same authority that they can justifiably affect eminent domain.
Certainly in this case the Rabbi, or an agent of his, should move to evict etc, however to imply that “adverse” possession is against Torah, or not binding, or that no transfer of ownership or approval of occupancy is affected, is to deny the application of dina dimalchusa Dina.
It is like landlords who claim that dina dimalchusa Dina can’t apply to dinei mamanos (quite untrue) and they can therefore evict a G-d fearing tennant on the spot with no notice because they didn’t agree to a “Torah binding” grace period at the time of renting etc. And of-course such treacherous treatment would only be perpetrated against a G-d fearing person and his family.
Either way, you can’t have it both ways. And anyway, it is incorrect that such dina dimalchusa is not binding. Furthermore the Gemara gives explicit examples of where two contracts with the same terminology have different inclusions and exclusions based on the locale, with examples elucidated.
In the USA one simply doesn’t have absolute ownership as otherwise imagined, and this is inherent to what we call ownership here.
Granted adverse possession laws might be undesirable, but they are binding. Though, one can certainly lobby for the law to be changed.
One can also view such laws as a foreshadowing of Moshiach’s coming: as Torah foretells “they will reform their swords into plows”! That instead of a country appropriating one’s home or a portion thereof to house soldiers in war (as was common), they are doing so (arguably) to house people who have nowhere else to go.
Zelig is absolutely correct. I think where people get up tight about squatters invoking adverse possession is in the cases where squatters take over a vacant property. Sometimes they draft a fake rental agreement, yet it still takes a court order of eviction to get rid of them. Sometimes there was an actual rental and they stop paying rent without good reason. Then it becomes an avla that it takes so long and so much expense to get rid of them. Some states are trying to address these problems.