Question:
There is a tree that looks like it covers a small portion of my sukkah but it is 40 feet above the sukkah and does not effect shade or sunlight in the sukkah because it is so high up. Is there a problem sitting under this branch? The sukkah is full and needs every seat!
Answer:
Thank you for your question.
The halacha is that a tree or a roof that is over a succah invalidates the succah or at least that part of the succah. The fact that the tree is high, and the sun can get around it, will not affect the halacha here, because the idea is that we have to sit in a succah that is not under anything else, but directly under the sky. Therefore your situation is potentially problematic, depending on how thick the branches hanging over the tree are.
If they would be able to give shade to most of the area underneath it, called tzilsa merbah m’chamasa, (if the tree would be right above the succah), then it is problematic. You would then have to find some way to remove that branches or consider that part of the succah posul. If the branches are thin and spread apart, in a way that underneath it would be mostly sun, (chamsa meruba m’tzilasa) then it is controversial, and the preferred thing would still be to cut off the branches. On the other hand, since it is controversial, if you have no way of getting it cut down, you can rely on the lenient opinion (that since the branches aren’t mostly shade, that they are not problematic) and use that part of the succah. There is however another option, which might help if the branches are thin. To place a lot of sechach on that part of the succah, i.e. fill it up so that it is totally covered with sechach. This would help, because even if we would discount all of the sechach that is directly under the branches, you would still be left with an acceptable amount of “kosher“ sechach. Another factor that is important to mention is that if the branches are covering a part of the succah 4×4 tefachim, they will invalidate that part of the succah. Therefore this option might not work for you.
On a practical level, unless you can be sure that the tree’s branches are only mostly sun, and it doesn’t cover more than 4×4 tefachim (a little more than one square foot), getting the branches cut down is the way to go. Don’t worry about the expense- it is hotzoas Yom Tov and Hashem will reimburse the whole cost.
Have kesiva vchasima tova
Sources:
O:CH 626-1. Biur Halacha D:H V’yesh, M:B ibid-6,11. Additionally see Bikurie Yackov 526-1, and Kaf Hachayim 626-7 that according to the Rema, l’chatchila one should not make a succah under a tree, because it is easy to misjudge and miscalculate if the branches are indeed mostly sun or mostly shade.
