Shabbat Parashat R'ei 5783

P'ninat Mishpat: Rights of a Yishuv on Peripheral Land – part I

Case: The plaintiff (=pl) is a yishuv in Yehuda/Shomron. The defendant (=def) planted an orchard on unused land outside the yishuv without permission from anyone, which has been the subject of litigation for years. When pl wanted to build an access road for the yishuv through the orchard, a beit din ruled: def must acknowledge that he does not own the land and allow pl to build as needed; pl will reimburse def for taking land def has been cultivating. The sides signed an agreement based on this ruling. It includes provisions for compensation for def but requires him to receive permission if he wants to expand the orchard. A later agreement dealt with def’s erecting structures on the land and allowed pl to build housing on the land in return for compensation. Years later, pl decided to charge def and other businesses in the yishuv and its periphery taxes and security charges, claiming it is unfair for businesses to benefit while only residents pay. This would cost def tens of thousands of NIS a year. Pl now demands payment retroactively for the years that def refused to pay.  Pl also demands part of the profits for the sale of part of def’s operations. Def claims that pl cannot demand taxes on def’s orchard because the land is outside pl’s jurisdiction. Also, standard practice is for yishuvim to not charge farmers who cultivate the land around them, as it adds staying power and serves as a security buffer for the yishuv. It is also not right to change the rules years after def is on the land. 

Ruling: The land def cultivates is indeed over the “blue line” of pl’s jurisdiction, and it is even outside the regional authority to which pl belongs. Therefore, pl does not own the land and subsequently has no authority to demand money as rent for using it. Although def is a member of pl’s resident association and signed that he is bound to their decisions, this does not apply to decisions concerning land out of its jurisdiction.

Part of pl’s claim to ownership is based on the first beit din’s ruling that whatever is within pl’s fence, belongs to it. However, that ruling only relates to the right of usage (chezkat shimush), not to ownership. The ruling says that neither side owns the land, but pl has the right to determine its usage. The most recent agreement, which states that “the rights to the land will, in the future, be assigned to pl, and this agreement will continue to apply” also recognizes that at present, pl does not own the land. The agreements also never included payment for rent, which is in line with this analysis. Pl’s claim that due to def’s use of the land, it is not possible to charge others for their use is not to be accepted. First, pl does not have a right to take from the other people in his situation either. Second, pl has the ability, including based on the agreements, to use the land for extending the housing of the yishuv (although they will have to compensate def somewhat).

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