Question
One of the neighbors planted an arrovoh tree in the yard of the building. There are twenty residents of the building and the yard is owned jointly by all of them. The neighbor who planted didn’t ask anyone for permission, but also no one raised any objection. Furthermore, he didn’t ask for and no one paid him anything for his work. Are the arrovos considered his? Do we need to ask his permission before taking arrovos? Does he need to ask our permission before taking arrovos? Can he or we sell arrovos?
Answer
In order to answer all of your questions we must determine what happened halachically when the neighbor planted the tree. Since the land on which he planted the tree belongs to all of the neighbors, this case is determined by the Gemoro (Bava Basra 42B) that rules that when a partner improves common property he is considered a yoreid with permission. As we discussed in previous articles, when one works without being hired he is called a yoreid. This Gemoro is thus saying that the tree is not his, but since he improved the joint property he is entitled to payment for his work. Again, he is certainly not the owner of the tree.
Since the tree grows on joint property the partners can tell the neighbor who planted the tree that they want the tree and then it is theirs. The reason is because he is just a yoreid meaning that he improved the joint property. They will have to pay him for planting the tree but probably this is easily worth it for the neighbors.
As we mentioned earlier, since the one who planted the tree is a neighbor, he is considered a yoreid with permission. As with every yoreid, in order to determine how much to pay we have to consider two factors: the expenses of the one who improved the property and the gain of the owners. In determining the expenses, we must take into account two factors: the cost of the raw materials and the cost of the labor. The raw materials in this case are probably just whatever was planted. Often people merely take the arrovoh from their own lulav and plant it. In this case, the cost is nothing.
The other factor is labor. It is clear from the Rishonim (for example Rashi Bava Metsiyo 117 B im hashevach) and ruled by the Shach (306, 5)) that labor is a cost. In case someone was hired to plant the tree, the neighbors would need to reimburse the one who paid for the planting. In case he planted it himself, they would need to pay him the amount that people charge for this kind of work. Usually it does not take long to plant and one can hire a child to plant, so this expense is also quite minimal.
In order to determine the value of the improvement to the common property, we must first understand what the Gemoro means by improvement. As Rashi (Kesubos 80A cf kemotsei) writes, the owner does not pay the one who improved the property the entire value of the appreciation of his property. Rather he must pay the amount a person would pay in order to make the improvement.
In the time of the Gemoro the general arrangement (Gemoro Kesubos 80A) was to give land to a sharecropper. Therefore, the owner had to pay the yoreid the amount one would pay a sharecropper. However, nowadays people just hire an hourly worker to do this kind of work. Therefore, the amount one needs to pay for the improvement is the same as the amount they would need to pay for expenses. Therefore, if the neighbors want the tree they will need to pay for the labor and the raw materials.
We should stress that the one who planted the tree has no right to refuse to give the neighbors the tree. He even cannot remove the tree as is stated in the Shulchan Aruch (375, 2). The reason (See Nimukei Yosef Bava Metsiyo 58B) is because when the neighbor planted the tree in the common property he effectively gave all the neighbors the tree. Therefore, if they desire the tree, it will be theirs.
It is like giving a present. If the recipient wants it, he may keep the present. Here it isn’t free for them, but the tree was given to all the neighbors if they wish to pay for it.
It should be noted further that the neighbors do not need to pay in cash. When one hires an employee, the employer must pay the employee’s compensation in cash (See Tosafos Bava Kama 9A cf Rav Huna). However, a yoreid is not an employee. Therefore, he cannot demand to be paid with cash. Therefore, the neighbors may allow the one who planted to take an amount of arrovos from the tree whose retail value is the amount that is due to him as payment for having planted the tree.
Even if the neighbors do not immediately ask to keep the tree but wait a while, and even for a few years, once they pay, most Rishonim (See Rashbo’s commentary to Bava Kama 21A and the Ketsos 363, 5) maintain that the neighbors’ ownership takes effect retroactively. Thus, if the one who planted sold arrovos from the tree before they decided they want the tree, he will have to turn over the proceeds of his sales to the neighbors when they pay him the amount they owe him for his having planted the tree (as per the above plus a fee for selling the arrovos).
It should be noted further that the neighbors also do not have to agree to leave the tree. If they wish they can tell the one who planted to uproot his tree (Shulchan Aruch 375, 2). However, they have to be honest. If they tell him to remove the tree and then pick the arrovos themselves they will have to pay for the tree as per the above (See Shulchan Aruch 375, 3).
We should note further that it is not advisable for the one who planted the tree to just take arrovos as long as no one says anything. The reason is that, as the Machane Efraim rules and the Mishna Beruro (658, 10) cites his opinion, one should generally pay for his four species before Succos since according to the Torah one needs to pay in order to acquire a movable object. Since the neighbors may later acquire the tree retroactively if/when they pay the planter what they owe, it will turn out that retroactively he never paid for and perhaps didn’t even own his arrovos before Succos.
In conclusion: It is in everyone’s best interest for the neighbors to settle with the one who planted, paying what he deserves and then they can decide whatever they want to do with the arrovos.
