Neighborly Matters

A sheeilah arose concerning a homeowner who wished to build a sukkah on his balcony. An adjacent neighbor owned a tree whose branches extended over the balcony, making it impossible to construct a kosher sukkah without removing part of the overhanging branches.

The tree owner agreed that the branches could be cut, but insisted that the work be performed only by a licensed tree professional. Such a professional would charge considerably more than an ordinary tree cutter, not necessarily because he would do the job better, but because of his license, insurance, and the security that comes with hiring a qualified professional.

The question was whether the neighbor must bear this additional expense, or whether he may hire a less expensive person to remove the branches.

The Right to Remove a Damaging Tree

The Shulchan Aruch (Choshen Mishpat 155:26-28) discusses an ilan hamazik-a tree whose branches or roots interfere with another person's property. In such cases, the person being affected may cut the problematic portion of the tree.

The examples include a tree that prevents a person from receiving the sunlight needed for his crops, or branches that prevent him from properly plastering or repairing his roof. The underlying principle is that one person cannot allow his property to interfere with another person's legitimate use of his own property.

This halachah is not limited to actual monetary loss. The Shulchan Aruch also discusses trees growing along a public road, where the public may cut branches that interfere with the passage of people and animals. This demonstrates that preventing the ordinary use of property can itself constitute sufficient hezek.

Accordingly, preventing a person from constructing a kosher sukkah should likewise be considered a form of hezek. Building a sukkah is a legitimate use of one's property, and if the branches prevent the construction of a kosher sukkah, the affected homeowner should have the right to remove them.

Is the Tree Owner Obligated to Cut Them?

There is, however, a distinction between the right to remove the obstruction and an obligation upon the tree owner to remove it.

The tree owner did not actively create the damage. The tree is growing naturally within his property, and its branches merely extend over the neighbor's area. This is not necessarily considered girei dilei, since he did not perform an action directly causing the damage.

Nevertheless, the affected neighbor may exercise dina lenafshei and remove the branches that interfere with his use of the property.

It would therefore seem that the neighbor may choose a reasonable method of removing the branches, provided that he does not cause the tree owner any damage beyond the necessary cutting itself.

Thus, the tree owner cannot necessarily insist that the neighbor use the most expensive professional simply because he prefers that method. If an ordinary tree cutter can safely remove the offending branches without causing additional damage to the tree, the neighbor should seemingly be permitted to use that less expensive option.

Does the Tree Owner Have a Chazakah?

One might raise another issue: perhaps the tree owner has acquired a chazakah, since the branches had already been growing over the neighbor's property when he purchased it and the neighbor did not object, which gives the tree owner a chazakah that his neighbor can no longer demand him to get rid of his branches, for we assume that the neighbor was already mochel and agreed for the branches to remain there.

Although there is a big machlokes in the poskim whether chazakah can arise immediately when one does not object his neighbor's possesions on his property, or the chazakah will be established only after three consecutive years of non-objection. But in our case, the house was bought with the branches already covering his balcony, the tree owner perhaps can claim he created a chazakah prior to the sale.

Chazakah through an act

However, there is a fundamental reason why such a claim should not apply here. We find in the Yad Ramah that chazakah requires an act through which the person is proactive and does something that will cause damage to the other property, then we say that if the neighbor did not object, the first one establishes the right to remain, and the neighbor can no longer object thereafter. Where the situation developed naturally, without an affirmative act by the person seeking the chazakah, the mere passage of time does not necessarily create such a right.

This is particularly applicable to a tree. The branches grow and extend gradually on their own. The fact that the tree became large and eventually extended over the neighbor's property does not constitute an affirmative act by the tree owner.

Therefore, even if the tree has stood there for many years, the neighbor's failure to object does not automatically establish a chazakah permitting the branches to continue interfering with his property.

Conclusion

The owner of the balcony has a legitimate right to remove branches that prevent him from constructing a kosher sukkah. Although the tree owner is not necessarily obligated to cut them himself, since he did not actively create the damage, the affected neighbor may remove the obstruction.

Furthermore, the tree owner cannot necessarily dictate that the work be performed only by a licensed professional if this merely increases the expense without preventing any additional damage to the tree.

Finally, the natural growth of the tree does not create a chazakah, even after many years, since no affirmative act was performed to establish such a right, as explained by the Ramah. ■