Trespassing in Halacha
Written in Chicago in 2005, an analysis of the laws in the Torah regarding using someone else's property without their permission.
Very often in a city like Chicago, we are able to save ourselves time and extra walking by using alleyways to get to where we need to. Often, it can be very helpful to make one’s walk even shorter by “cutting through” someone else’s property along the side of their house to access the alleyway from the street. We will examine whether or not this is permissible, and if so what halachic issues may arise from doing so.
The Halachic Background
One of the most basic and fundamental property rights a land owner/renter has is that of privacy. The halacha recognizes that a person has a right to feel secure that no one else can see[1] what he is doing while he in his own property. This is referred to in halacha as “hezek re’iah” (lit. damage of seeing).[2] It is therefore prohibited to look into another person’s home or property without their permission.[3] In addition, one may not do any construction on their home or open new windows overlooking another person’s property if this will afford them a new or better view of their neighbor’s property.[4] Therefore, there is no question that if by walking through another person’s property one will have access to a vantage point that will now enable him to see what was not visible from the street, the property owner has a right to forbid such access to his property.[5] In addition, one can assume that the owner of the property would in fact object to this activity and one is therefore not allowed to walk through without explicit permission.[6]
If No Hezek Re’iah Will Occur
There are two basic scenarios in which there would be no issue of hezek re’iah while cutting through another’s property.
· If the property or windows in question are already completely visible from a public place (i.e. an alleyway), then there is no issue.[7] The entire property in question is considered to be exposed and visible irrespective of the person walking through.
· If the property is not used for any private activities (an open field or lot).[8] Obviously, no “damage” will occur, as there is nothing private to see there.
There is, however, another issue that must be addressed with regards to trespassing.
Denying Access Without a Justifiable Reason
There is a concept in halacha referred to as “kofin al midas S’dom.” We can force someone to not act in the way of the people of S’dom who, for no good reason at all, would prevent others from using their property.[9] What this means on a practical level is the following. Even though technically speaking, one would have a legal right to prevent others from using his property simply because it belongs to him and he does not have to let others use it, we in effect force him not to be stingy in this way.
One thing is clear, however. In the halachos of property rights, there is a concept of a “chazokah.” If a person does something that the halacha recognizes as disturbing to his neighbor, and that neighbor does not object or ask him to stop, in many instances the right to protest in the future is lost. Therefore, if the activity of the “intruder” could gain him a chazokah on the property, for this reason alone, the owner has a right to deny him access.[10] This is not considered midas S’dom, as he is protecting his rights to his property from a possible chazokah.
There is a dispute amongst the poskim as to whether a person can actually obtain a chazokah on using someone else’s property as a shortcut.[11] Therefore, it would seem that the owner’s right to deny the trespasser access to his shortcut would be dependent on this machlokes.
What is the Practical Halacha?
There is no question that it is best to ask the owner’s permission and have explicit permission granted to use his property as a shortcut. If this is not an option, two prerequisites must be met. The must be no question of hezek re’iah and there must be no actual damage done to the property by walking through. This includes ruining a lawn or plants that are growing. Even if there is no “damage” being done, still one should not use this shortcut without permission on a constant, ongoing basis. As far as the property owner is concerned, assuming there is no loss or “damage” being sustained by the use of his property, he may be obligated to allow the use of his property as a shortcut on a non-regular or ongoing basis.[12]
As always, there are very often details and mitigating factors that can affect the final halachic ruling in situations such as these. Should such a situation arise, a shailoh should be asked to a competent Rav or Posek.
[1] With respect to privacy from others hearing what is being done or said in one’s own property, the poskim say that there is no such inherent right. Therefore one may not demand of a neighbor to either construct or remove any part of his building that he feels may enable his neighbor to better hear the goings on in his home. See Cvhidushei R’ Akiva Eiger on Choshen Mishpat 154, 3 that “hezek sh’miah lav sh’mei hezek.”
Eavesdropping, however, is forbidden in halacha. See Teshuvos ViHanhagos (Rav Moshe Shternbuch shlit”a) vol. 3, 388 and Mishpetei HaTorah that this may even fall under the Cherem diRabbeinu Gershom regarding reading someone else’s mail.
[2] Bava Basra and Ch. M. 154, 3.
[3] Ibid. See SM”A s.k. 14 that one must be careful not even to stand outside someone else’s house and appear to be looking into their windows.
[4] Ch. M. 153, 1-4 and 154 for many cases and details of this halacha.
[5] Bach 153, X and SM”A s.k. 30.
[6] Cf. 154, 3.
[7] 154, 3 and 153, 5.
[8] Bach ibid.
[9] Bava Basra 12b. See Rabbeinu Gershom who explains that this refers to the midah of S’dom mentioned in Pirkei Avos 5, 13 of “Sheli sheli, vishel’cha shel’cha.” See Rashi and Rabbeinu Yonah in their peirush on Avos who refer us to Yechezkiel 16, 49.
[10] 153, 1-3 and 13.
[11] The main machlokes haposkim is between the Kitzos HaChoshen (140, s.k. 3, 7 and 8) who holds that one can have a chazokah for d’risas regel and the Nesivos (140 s.k. 19 and 153 s.k. 12) who holds that in the absence of a recognizable permanent action, there is no such thing as a chazokah on an action that is repeated many times over.
[12] Pischei Choshen vol. 5 15, note 53.