Q&A from the Bais HaVaad Halacha Hotline

Beating a Path

June 4, 2026

Q After buying my house, I discovered that neighbors cross my backyard to reach a playground. When I told one that I intend to fence in the yard, he said he’s used the yard for years and is entitled to continue doing so. Is he right?

A The Gemara (Bava Basra 99b) says that if the public has a chazakah of using a path—meitzar shehecheziku bo rabim—it may not be blocked. The Rashbam explains why: Because the owner knew people were trespassing and raised no objection, his silence implicitly grants the public an easement, which is a kinyan that he cannot rescind. The Rama (C.M. 377:1), following this reasoning, rules that there is no kinyan unless the land was used with permission, even if that permission was only implicit.

The Sma (ibid.) adds that once the public’s use of the path is established, the burden of proof shifts to the owner, because the default assumption is that it was used with his consent.

The poskim enumerate several exceptions to this rule, some of which may be relevant to your situation:

1. An irregular or difficult path: If the route is winding or not readily accessible, the principle does not apply (Chochmas Shlomo ibid.).
2. Underuse: A chazakah is only established if the path is used by a majority of area residents (ibid.).
3. Dina demalchusa: Civil law can override the principle of meitzar shehecheziku bo rabim (ibid.) if there is an explicit municipal ordinance; case law and legal precedent are not dina demalchusa. Whether local zoning rules are relevant would need to be verified for your location.
4. Ignorance: If the property owner did not know that the path is on his property, there is no chazakah, as he did not acquiesce (Erech Shai ibid.).
5. Inoffensive use: If the public’s use is of a sort that property owners typically overlook, e.g., if the property is large with portions not clearly demarcated as private where locals congregate, there is no chazakah (Divrei Chaim C.M. 2:13).

As with all such matters, each case must be evaluated by a mutually agreed-upon rav.