By the Bais Hora'ah
Q. I hired a worker to add an extension to my house while I was on vacation. When I returned, I realized that he had built approximately one foot over the boundary onto my neighbor’s property. My neighbor has yet to realize that I infringed on his space. I know that I must compensate him, but before approaching him, I would like to hear what the halachah requires in such a case so I can approach him with an appropriate offer.
A. Infringing over a property line, even a fingerbreadth, is considered a very serious transgression. If a person does so by force, he is a gazlan, and if he does so deviously, he is a ganav. In addition to these prohibitions, in Eretz Yisrael he would also transgress the prohibition of hasagas gevul (Shulchan Aruch Choshen Mishpat 376:1; see Sma 2 regarding whether stealing real estate is considered a Torah-level or rabbinic prohibition).
The passuk from which we learn that a thief must return a stolen object is: Veheishiv es hagezeilah asher gazal – he shall return the stolen object that he stole (Vayikra 5:23). This generally obligates the thief to return the actual item, not its monetary value. The only exceptions are cases in which he no longer has the item or it has changed in a way that even if he returned it, it would no longer be considered the item “asher gazal – that he stole.” In such cases, he is required to pay the value of the stolen item.
According to the letter of Torah law, then, if someone stole a beam and built it into a large building, since that beam is still intact, he would be required to dismantle the edifice and return the beam to its owner. Chazal reasoned, however, that if we insisted on this form of repayment, there is little chance that the thief would ever make any sort of restitution, so they instituted a takanah (referred to as takanas hashavim) that in cases where returning the stolen item would involve a significant financial loss, the thief may return the value of the item rather than the item itself (Choshen Mishpat 360:1).
In cases of real estate theft, Chazal did not institute this takanah; if someone stole a plot of land and built large buildings on it, he would be required to destroy the buildings and return the land to its owner (Rema ibid.).
The are several approaches to explain why Chazal did not institute this takanah for real estate, and the answer to your question depends on the reasoning behind these various approaches.
Some say that the reason the takanah does not apply is that a landgrabber assumes that it is very likely that he will have to return the property, so being forced to return it doesn’t influence his willingness to make restitution as it would for a thief who stole a beam, who might be tempted not to return it if not for the takanah (Sm”a 6; see Ba’eir Heiteiv and Nesivos 1).
Some apply similar, but slightly different logic: There is no need for this takanah because Chazal were certain that the landgrabber will eventually be brought to justice and be forced to return the land, which will remain intact. Other items can rot (Taz 360:1) or be hidden (Levush 360:1) before the thief is brought to justice, so Chazal instituted the takanah to ensure that the owner would be repaid in some form.
Others say that there actually should be a takanah for real estate as well, but Chazal penalized the perpetrator for violating the prohibition of hasagas gevul by disallowing the takanah in such cases.
Some poskim write that the latter approach applies only to someone who deliberately violated hasagas gevul, and therefore deserves to be penalized. If the hasagas gevul was unintentional, as in your case, the injunction would not apply and the takanah would enable the violator to repay the value of the land rather than return the actual land (Shu”t Mabit 3:143, cited in Pischei Teshuvah 1).
Others argue, however, that there is no takanas hashavim even if the hasagas gevul was unintentional, and the land itself must be returned (Mishneh L’Melech 6:1, also cited in Pischei Teshuvah ibid.). The Rashba (cited in Beis Yosef 376, Mechudash 1) writes that the halachos governing stolen land are more stringent because we do not force a landowner to sell part of his estate. According to these opinions, you would be required to return the actual land, and may not insist on paying its value instead.
In the next issue, we will present another line of reasoning that applies to this case.