New York – Is A Sukkah Kosher On Public Property?


    New York – You drive by it in the morning. You see it in Far Rockaway, you see it in Flatbush, and you see it in Boro Park.

    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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    1. This is not a halachik question as the brocha can be said in the part not protruding on public property. It is mainly a question of “mentchlichkeit”. The solution isn’t clear because it all depends on where you live and what are your options and most importantly what do your neaghbors think.

    2. The last story about the ‘irate neighbour’ – for a while that is how it went every year with the restaurants – now the locals know not to bother reporting it!

    3. The short of it is: Some poskim say that you can eat in it and make a brocho (as cited). The Chayai Odom says it is posul.and you are not yotzei!!!
      The shulchan aruch harav says you are yotzei, but you cannot make a brocho!
      So they spend big $$$ on a nicer esrog to shake in a succoh that is very questionable.
      Go figure!

    4. What a stinking attitude in this article. 1. You clearly have no background knowledge of law and public domain, and 2. Don’t question the validity of the thousands of jews that will be making a perfectly good brocho in such sukkas this year who would have otherwise not stepped into any.
      Happpy post yom kippur.

    5. Most public areas today are not considerd a rishus harabim lehalachah. At best 90% od the public sukkos are on a karmilous. Not sure the impact on this specific question just thought I would add my 2 cents.

    6. No! It is a very good article. It shows us how important it is to try out best to make sure we can get permission before buidling a Sukkah. I have an issue with a Homeowner’s Association. Since the grass behind the town home is “common property” over which the Homeowner’s Association has and exercises strict control over, it is truly a question if my sukkah is kosher if built without permission. Just because I own a partial interest in the common grounds, does not make it automatically correct, since if the Association forbids the Sukkah, it may not be kosher. Therefore, even according to many who hold that it is kosher bedeieved, you are better off not making a bracha…. and maybe you are not yotzei.

      Sure, we all know there is always a selection of gedolim who are matir .. But if we follow every shita which is meikil in every matter who are we????

      • correct me if im wrong but I would think that even if one gets permission from the association, that would still not validate a kosher sukka because it means they would need to ask each and every resident for permmission ,because its shared by many . In many cases goyim will object so how is getting reshus from the association good?

        • I’ll [try to], if you’re wrong! and you are wrong! The Homeowners’ association (in this case) is ruled by a board. They speak for all the residents and have the power to levy fines or throw someone out, altogether! Same goes for dealing with Municipal Gov’ts. When someone takes out a permit and “rents” part of public property for purposes of an Eiruv or a Sukkah, the Rep. he deals with has the authority to “Rent” that piece of property, as if he were the sole owner!!!

    7. Dear Litvak,
      The article is purely halachic and has no stinking attitude. This guy seems to be a Tlmid chuchum and aside for some ahavas yisroel problems you probaly should ask him mechilah for being mevazeh a talmid chuchum. He is not asking on a minhug yisruel it is a Ramuh and mugain avruhum – and he comes out that it is muter.. Just because this is the internet does not give you a license to be mevazeh people

    8. dear public domain,

      karmalis and reshus harabim are a din in eruvin. This reshus harabbim is a din in who it belongs to- even if it is a karmalis legabei eruvin.

    9. Yasher koach on the fine article.

      Commenter #6 needs to do teshuvah for his silly and reprehensible comments. The article is very on-target and timely and the writer is a talmid chochom choshuv. The way of Torah is that sheilas are discussed, do you want to censor discussion of this sheila, which is part of talmud Torah?? A real Litvak enjoys Torah discussions like this and has derech eretz and doesn’t speak that way.

      I think there is a sheila of chillul Hashem, and even safety, when very large sections of sidewalks are blocked. Where are people supposed to walk ? If you want a sukkah, does that mean you must block 90% or more of the sidewalk?

      Another problem that I have seen in one place, at a famous shtiebel, is that they leave the sidewalk sukkah up all year ! What is the heter for that???

      I did see a permit hanging on one Sukkah in the past, at Lubavitcher sukkah on 16th ave. in Bklyn. Perhaps due to the shita of the baal hatanya?

    10. The first Lubavitcher Rebbe writes that one should not make the Sukkah on public property, although if it is done one may eat etc. in it. though a Bracha should not be recited. not as it was made to seem in the article.

      • I haven’t seen the ruling (in the Shulchan Aruch Harav. The Mishneh Berurah, when quoting him calls him “Ha’gra”Z” , which is an acronym for Hagaon Reb Zalmen)! But the most likely reason [for not sanctioning a Sukkah on public property] was that conditions in Czarist Russia at that time were such that the government would confiscate property from private citizens over their objections. Therefore, the [czarist] government was in no position to grant permission. Hence, the Sukkah that was built on that property didn’t qualify to say a Bracha in it!!!

    11. If you have a restaurant and the restaurant has a license to outdoor cafe, i.e. the city is paid fees from the owner of the restaurant, then, If we follow Dina De Malchota Dina, I believe there is no problem from Halacha to have a sukkah at
      the outdoor cafe of said restaurant. Talia’s Steakhouse, a Glatt Kosher restaurant on Amstedam Ave (92nd-93rd Streets) is converting its sidewalk cafe to a Sukkah..


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