Over 17 years ago, I bought my apartment on the top floor in Beitar. There are 2 sides to the dira, with a koma karka, 1st, and 2nd floor...so 6 owners. There is a huge chalal under the gag, and my neighbor and I (who both live on the top floor) want to build yechidot. Now, my downstairs neighbor on the 1st floor, brings me to Beis Din and says "who says that the space is only shiach to you?"
Well, I told them that it was written in the contract, but the contract got lost. It's been 17 years! I thought no problem, Baba Basra says after 3 years, it's no longer a problem not to have the shtar. But the Beis Din say that that isn't true, since I can still find out if it's my space or not because it must be written in some office somewhere
Out of curiosity and a desire to understand the Torah, why do I have the burden of proving it's my space to build? I have a tynah, chazaka of using the space to store stuff (not to live there, but still...), and it's been 17 years. Shouldn't my downstairs neighbor have the burden of proving that I don't have the right to build there on top of my apartment? (hamotzei me'chaveiro alav haraya)
Thanks again,
Shmuel Dovid Ellis, Beitar
I have spoken to someone with experience in the dealings of Beis Din, and he suggests that possibly what the Beis Din said can be understood more as a preliminary reaction to a rather complicated issue. Nowadays there are a lot of cases going through Beis Din concerning spaces like you have in your building. In general, it certainly deserves further thought how the Din of the Gemara, that a person is expected to look after his Shtar for only 3 years, applies in our computerized age, and, in addition, it certainly seems arguable that the contract you refer to is somewhat different to that of the Gemara, because yours only relates to a specific detail connected with a part of the building. In addition, it is very possible, for instance, that the contractors who built the apartments made the same rules for all of their buildings, etc.
Kol Tuv,
Dovid Bloom
I found that Rav Yitzchak Zilberstein shlit'a, in his Sefer "Chashukei Chemed" on Bava Basra, devotes the first piece in the chapter "Chezkas ha'Batim" (page 185) to the question of how the Din of the Gemara that one is not expected to keep the deed of sale for more than three years is applicable nowadays.
1) Rav Zilberstein cites the Teshuvos To'afos Re'em (by Rav Aharon Moshe Toibes, 1787-1852) who rules that nowadays no Shtar is effective unless it is registered in "Tabu" (the official land-ownership registry in Israel). This is because the seller and the buyer do not take the sale seriously unless it is effective according to the law of the land; otherwise, there is no "Semichus Da'as" for the sale.
2) Chashukei Chemed says that it appears that nowadays a Chazakah of three years is not sufficient on its own, because people are careful to keep their Shtaros after three years since they know that they will require the Shtar in order to register the apartment in Tabu. In addition, the seller may claim that the reason he did not protest against someone occupying his house for three years is that he knew that he could retrieve the house from the occupier since it is not registered in Tabu.
3) Shmuel Dovid, I think that your case might not be totally similar to the above details, but at any rate we have seen that the contemporary Halachah may not be quite the same as in the time of the Gemara.
Dovid Bloom