New York - Is A Sukkah Kosher On Public Property?
You wonder about the Halacha.
You see a Sukkah built on public property. Your thinking is that it is pretty near impossible to even contact the authorities to get permission to build on public property. And so you wonder.. Is it a Kosher Sukkah?
Even if it is a Kosher Sukkah, may one recite a blessing on it? Does everyone agree that it is a Kosher Sukkah? And if it is a Kosher Sukkah that you may recite a blessing on – is there something wrong
with it? Is there any way to receive permission to build it on public property?
These are all good questions. The Gemorah in Sukkah 9a quotes the verse telling us “Chag HaSukkos taaseh lecha – make for yourself the holiday of Sukko"s – there is an emphasis on the word “lecha - for yourself” which excludes a stolen Sukkah. Therefore, a stolen Sukkah is prohibited. However, it may be pointed out that our case is different! Here, no one is stealing the Sukkah itself per se. What is being stolen is the land. And land is not something that can be considered stolen!
Why is it that land is something that cannot be considered stolen? There are two possibilities: Possibility Number One: The Talmud (Bava Kamma 117a) records an exposition of the verses regarding someone who lies and steals an item that was used for collateral. The conclusion is that only things that are a] worth money and b] are portable are inlcuded in the prohibitions of stealing. Since land is not portable – the verse thus exempts it from the prohibition of stealing. Possibility Number Two: Since land cannot be moved – it cannot, by definition, be stolen. (See Tosfos Bava Metzia 61a “Elah” and the Pnei Yehoshua for an explanation of this view).
The Jerusalem Talmud gives us more insight (JT Sukkah 3:1). Rabbi Gamliel built a Sukkah on public property. Rabbi Shimon Ben Lakish passed by and asked, “Who gave you permission to do this?” The Ohr Zaruah explains that he meant to ask, “The Rabbis only gave permission to do this post facto. Who gave you permission to do this at the onset?”
So there we have it. From the words of the Ohr Zaruah we can conclude that it is not ideal. But if done - it is acceptable.
The Ramah (OC 637:3) cites this Ohr Zaruah as being authoritative. The Achronim (Pri Magadim, Bais Meir, and Aishel Avrohom) also rule accordingly. The first Lubavitcher Rebbe (Graz SA OC 637:11), however, indicates that even after the fact, it is incorrect to do so.
So now we have some dissention. Lubavitch people, if they follow their own authorities, do not build Sukkahs on public property. So apparently we won’t be seeing it in Crown Heights.
Are there those that agree with the Lubavitch sentiment (in terms of kosher Sukkahs – not in terms eschalogical issues)? The Magain Avrohom (OC 673:3) questions how it could be done because there are so many people involved in “the public” that how can it be said that they all are okay with it? He concludes that even though it is kosher post facto, a blessing should not be recited over it.
The majority of Achronim, however, have diagreed with the Mogain Avrohom’s view. One factor that they consider is that the Sukkah is only there temporarily. Indeed, most of the Achronim do permit reciting a blessing on it, and this is the custom. The Mishna Brurah even rules with this position. Howvever, he concludes that ideally, it should not be built there unless there is no other viable option.
But were any of these Sukkahs built with permission? It seems that some of the community boards and police departments did give permission. It also makes sense because how is it any different than putting a garbage container on the street?
All this reminds us of the story about a religious Jew who was reported upon by an irate neighbor and was cited for building a Sukkah in his back yard without permission. The judge ruled that he had two
weeks to remove it or he would face a hefty financial penalty.
Everyone left happy.
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