Dear Rav Kornfeld:
I'm troubled by a general problem that is not exactly covered by the gemara as I have been preparing for this section. Do you think someone could help me to better understand the issues involved, and perhaps see if there is a documented halacha which applies?
The section deals with a chazaka on land or houses - non-movable property.
My issue deals with making an objection to another's use of land in such a way that despite his best efforts, the squatter is not notified, but it is provable that efforts were taken to object.
What would a Beis Din look for in resolving such a case -- that there was an objection? or that the squatter was notified?
As in, suppose there were kosher witnesses to the letter being sent by a messenger, and a file copy of the letter, but it is found out after the 3 year period that the messenger never made it to the squatter, perhaps he was killed by bandits on the way.
Does his proof that he objected and sent the messenger have enough weight to overcome a chazaka by the squatter according to one that would say that a chazaka could work while the owner is overseas?
Or would a Beis Din say that since the squatter was not notified and has a basis to think it could be his, that the chazaka is good? That the fact he did not hold onto the deed and lost it does not matter.
Here are some examples of why the situation could be other than the cases in the gemara.
Suppose the actual owner of land is overseas for a four-year period and receives word that there is a squatter on his land. And suppose he even knows why this particular squatter might think he has a claim against his land, and wishes to try to resolve the problem by sending a letter through a messenger, perhaps so as to not embarass the squatter or the one from whom the squatter thinks he might have been sold it.
Perhaps the squatter is the son of a deceased land thief, or there are other sensitivies, such as the son of deceased relative who was given documented permission to utilize a portion of an estate he did not actually inherit? Either way, the actual owner doesn't want to humiliate or embarass the person or expose the issue to any wider audience than necessary. These specifics are not significant to my question.
I could imagine in a secular case that the parties could stipulate to the existance and of whatever words are in the contract or deed which the squatter would claim he had but lost, and then adjudicate the case based on whether the provable documented history about how the one who sold it or gave it to him not having come into the land properly?
Another general practcal case concerns me.
I have seen several cases where a car is entrusted to a mechanic and not repaired in a timely fashion. And I have seen where house repair carpenters or roofers fail to finish jobs they have been paid to do.
And I am aware of the benefit to a homeowner of having a house-sitter.
Suppose a homeowner of a large house in the US with a lot of wood trim is going to go to Israel for four years and hires a carpenter to slowly go through all the wood trim finish of the house room by room over a several year period where part of the compensation for the repair work will be by the carpenter's reduced living expenses of having the house as his dwelling.
Further suppose that the homeowner has a very well documented contract that the carpenter and his family are house-sitting while doing the repairs and are welcome to live in the house during this years.
If the carpenter tries to assert a claim that he owns the house after 3 years, is the homeowner at risk of losing his house?
Perhaps the carpenter might even claim that one week after starting the job the owner of the house told him he would not be returning and they agreed over the phone to a sale, or to invoke whatever mechanic's lien clause would be standard for a situation of an unpaid carpenter?
How about if the carpenter dies, and the son of the carpenter did not know that he father did not own the house he was living in when he died.
What can a homeowner going overseas for a long time do to protect his rights if it is at risk of a squatter?
And other than get a document and not lose it, what can a mechanic do if in fact a homeowner did agree to give him his house rather than have the complicated repair work completed?
Perhaps this house is even the sole structure on a remote private island so that noone would even see the carpenter, or ever saw the homeowner on the land, or how to notify the homeowner if they saw a squatter starting to take it?
Robert
Let's try to answer as many of your questions as we can.
1) Letter sent to squatter but never arrived:
You have raised a very basic question regarding Chezkas Shalosh Shanim: namely, what is the purpose of the Macha'ah (protest)? Is it essentially for the benefit of the "owner" - to preserve his claim to the land - or is it essentially for the benfit of the "squatter" so that he will be careful to hold onto the deed to the land?
The Rishonim ask your question in the following way. What if the witnesses to the Macha'ah (the owner must make a Macha'ah orally in front of two witnesses) testify that they never told anyone about the Macha'ah and therefore it is impossible that the squatter heard about it? Would we say that since he didn't hear about it we have to assume that he had the deed to the land but was not careful with it and therefore he keeps the land? Or do we say that since we know the owner protested, there is no reason to doubt his claim to the land? Tosfos (40a, DH Macha'ah), the ROSH (3:1), the RASHBAM (39a, DH Macha'ah), Aliyos deRebeinu Yona (39a), the RAN (Teshuvah #75), and the Shulchan Aruch (CM, 146:3) all agree that in this case the owner gets the land. The Ran explains it this way: in general, the whole basis of the squatter's Chazakah is that the owner did not protest. The fact that the squatter doesn't have the deed to the land is not cause for suspicion because people aren't careful with such things after three years. In our case, however, the owner protested so the squatter loses his Chazakah. The fact that he has a good excuse for not having the deed - he didn't hear about the protest - is now irrelevant.
Therefore we say that the Macha'ah is essentially for the benefit of the owner and in your case it wont help the squatter's case that he didn't get the letter.
2) Owner sends letter to squatter; doesn't want anyone else to know:
You have put an interesting twist on a case that the Gemara discusses. In your case the owner has told the witnesses - for reasons of privacy - not to tell anyone except the squatter. The Gemara (39a) speaks about the opposite case - that he instructs them not to tell the squatter but says nothing about telling other people. The Gemara says that it is a valid Macha'ah because even though the witnesses don't tell the squatter himself, but they tell other people who in turn tell other people and eventually the squatter hears about it (Chavrach Chavra Is Lei - "the grapevine"). Only in the case where he tells them not to tell anyone is the Macha'ah invalid (39a). In your case there will be no mechanism of Chavrach Chavra Is Lei. On the other hand, it is reasonable to assume that the letter will reach the squatter - they usually do. It is quite possible that this would be considered a valid Macha'ah and the squatter loses his Chazakah even though the letter never reached him, as we discussed above.
3) The case of the carpenter house sitter:
If someone is renting a house, it is possible that he could make a claim on the house after three years, but only if he stopped paying rent and the owner didn't protest. In your case of the carpenter there is no rent money but the owner does have a contract stipulating that for four years the carpenter is living there as a house sitter. How could the carpenter convince the Beis Din that this arrangement has changed? Why should we believe him more than the owner? Why should the owner be expected to make a Macha'ah?
I discussed your case with Rav Moshe Sternbuch Shlita, the head of the Beis Din of the Eida Charedis. He said that today property ownership is registered with the government ("Tabu" here in Israel) and therefore in most practical cases such as your's the property will be awarded to the one under whose name it is registered.
Kol Tuv,
Yonasan Sigler