We live in a brand new building together with many other frum Jews. This Succos, which was everyone’s first year in the building, everyone built their succo in the common yard which otherwise is used as a play area. This year my downstairs neighbor built his succo right near the entrance to the staircase leading to both of our apartments. He built his succo very early – before Rosh Hashana – perhaps in order to ensure that he would get that desirable location. When I saw him building I didn’t say anything because we are good neighbors and I would like our good relationship to continue. However, I would also like to build there in the future. Have I forfeited my right to this spot because I didn’t say anything? If I didn’t, will I have to get there first next year, or is there a way we can make an arrangment and I can wait until after Yom Kippur like it says in Shulchan Aruch without fear that I will again lose the best spot?
Before answering your question, we will translate your question into the terms used by the Gemoro and Shulchan Aruch. That way we will see that your question is a specific application of a more general question.
The common area that is discussed by the Gemoro is a chatser hashutafim which is a translation of the words a “common yard.” You and your neighbors, including your downstairs neighbor, are joint owners or partners which is translated into “shutafim.” Finally, the reason that you may be inhibited from building there in the future is that perhaps your neighbor has established a chazokoh to use this place for building his succo. Thus, your question is whether a shutaf can establish a chazoko in a chatser hashutafim and if yes, how does he establish such a chazoko.
There is a Mishna (Bava Basra 57A) which discusses this issue. The Mishna teaches by example and states, “If one placed his animal, stove or mill in the yard… he did not established a chazoko. However, if he built a ten tefach high wall for his animal, stove or mill… he established a chazoko.” The authoritative opinion in the Gemoro explains that the underlying rule which is exhibited by these examples is that if one acts in a manner which offends his neighbors and they did not raise an objection, he thereby establishes a chazoko. However, if his action per se is not offensive then the silence of his neighbors is insignificant since their failure to object does not indicate acquiescence.
Since it was common, in the time of the Mishna, for neighbors to place their stove etc. in the common property, a neighbor’s placement of a stove on the common property has no halachic significance and he has no more rights than he had before he placed his stove there. However, if he built a wall it is significant, since neighbors would normally object, since building a wall was unusual. If a neighbor did not object, then it signifies agreement of the neighbor.
Thus, we have found a principle which allows us to decide which actions enable a neighbor to claim rights in common property. If the neighbor’s actions are unusual and the general reaction of other joint owners who are not happy with his actions is to object, their failure to react signifies that they are granting him permission to continue with his action on a permanent basis.
It is important for us to classify this type of chazoko since it has halachic significance. Since the neighbor’s actions only constitute use of the common property for his personal use and do not show that he is the owner of the area in question, this type of chazoko is called chezkas tashmishim. The significance of this description is that the one who used the property does not need to claim that anyone granted him explicit permission (see Sema 140, 22) to engage in his activities. It suffices for him to derive that he has permission from the silence alone, which is not sufficient when wants to establish ownership on the basis of chazoko since in that case he needs to claim that he was explicitly granted permission (See Mishna Bava Basra 41A). It also means that, according to many opinions, one does not need to use the property in this manner for three years in order to establish his rights. Rather, if his neighbors noticed what he did and they did not object, it signifies their agreement right away.
Turning now to your specific question: since neighbors do not mind when other neighbors build a succo in the common property, your neighbor did not establish a chazoko. This means that you can object next year if he again wishes to use this spot.
More specifically, what you should do, if no one else wishes to use this spot, is to sit down with your neighbor and arrange the use of the property for the future. Since you both want the exact same place there is no way to divide the property by area, but one could divide the time (See Choshen Mishpot 171, 8). Since it isn’t in anyone’s best interest to divide one season’s Succos into days, you could split future years – one year for one and one year for the other.
If you can’t come to an agreement over who should get first use, you should cast lots. The fact that he used it this year does not give you the right to use it next year (See Ramo ibid) since it was not divided this year, so the period which is being divided is only future years.
As we mentioned at the outset, all these rulings are a specific application of a general issue. The same rulings will apply if your building has a garage for use by the tenants. If two people vie for the same spot they should split usage in an equal manner and even if one tenant used the spot for many years they should split usage in a manner that does not reflect past usage since it is not relevant for the future.
The Mishna taught us additionally, that if a neighbor acts in a manner that normally offends his neighbors he does establish a chazoko. Thus, if your neighbor would have, for example, built a permanent stone floor on that spot then he would have established a chazoko since your silence would have indicated acquiescence. However, since he didn’t, you have lost nothing and next year you do not need to build your succo early. Just make a permanent agreement with him to rotate use of this spot.