An action to recover the immediate possession of real property, with damages for wrongful withholding.
The general principle governing all cases of possession of real estate in Jewish law was ("Real property is presumed to belong to its owner," as distinguished from its tenant or possessor). Mere possession, while of great weight in cases involving personal property, was not recognized in connection with real estate, except when such possession continued for an uninterrupted period of at least three years (see ḤazaḲah). Hence, one who claimed title to real property which was known to belong to some one else had to substantiate his claim with good proof; and any doubt arising in such matters was always resolved in favor of the owner (B. M. 102b; Ket. 20a; Tos. and Asheri, ad loc.; Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 225, 21, Isserles' gloss).
No writ of ejectment was necessary to reinstate the rightful owner in possession of his property. The owner, if powerful enough, could personallyeject the holder of the property and take possession of it. Even if the property passed through many hands, and the owner lost all hope ("yi'ush") of ever regaining it, it was still in the same status, and might be recovered whenever a favorable opportunity presented itself (B. K. 27b; Maimonides, "Yad," Sanh. ii. 12; Ḥoshen Mishpaṭ, 4 and 331).
Any damage caused to the property by the occupant, or any benefit derived by him from it during his tenure, became a debt which the owner could collect by a regular legal procedure. If, however, the damage was caused through no fault of the occupant—for instance, if water overflowed a field, or trees were burned down—he could not be held responsible for it, since the land was legally in the possession of the owner all this time. In the case of improvements being made on the property by the occupant, the court estimated such improvements and the money expended on them. If the amount expended exceeded the value of the improvements, the owner had to pay only for the value of the improvements. If the value of the improvements exceeded the amount of the expenditure, the occupant received the amount he had expended (B. Ḳ. 95a; B. M. 14b; "Yad," Gezelah, ix.; Ḥoshen Mishpaṭ, 371, 374).Ejectment at Expiration.
A tenant holding real property for a specific period of time might be ejected immediately after the expiration of such time. One holding property under an indefinite lease at so much per month might not be ejected unless notified by the landlord thirty days previously. No ejectment might be proceeded with in the winter from Sukkot until Passover. In large cities notice had to be given twelve months before ejectment might be effected. A tenant holding a shop had to be notified twelve months, and in some cases three years, before he might be ejected. Just as the landlord had to notify the tenant before he might eject him, so the tenant had to notify the landlord that he wished to leave, and the length of notice was the same in either case.
The amount of rental was regulated by the market value. If rent had risen during the period of tenure, the landlord might demand the higher price, and eject the tenant if he refused to pay it. If rent became cheaper, the tenant might demand a reduction, or leave immediately. If the landlord's dwelling was destroyed, so that he had no place in which to live, he might eject the tenant without any notice. The same laws governing the relations of landlord and tenant remained in force if in the meanwhile the landlord sold his property to another (B. M. 101b; "Yad," Sekirut, iii.; Ḥoshen Mishpaṭ, 312, 5-13).
The king had a right to eject a person from his property and to give it to any one he desired. There were, however, differences of opinion among later commentators regarding this right (Sanh. 20b; Tos. s.v. "Melek"; "Yad," Melakim, ii. 5, iii. 3; compare the incident of Naboth in I Kings xxi., and Ḳimḥi ad loc.).
Ejectment in consequence of a mortgage might only be proceeded with after the necessary steps of (1) "adrakta," tracing the property, (2) "ṭirfa," seizure of property sold after the loan, and (3) "shuma," appraisement of the property by the court, had been taken (see Debts; Procedure).
- Bloch, Civilprocess-Ordnung, Budapest, 1882;
- idem, Besitzrecht, ib. 1897.