Question
There is underground parking in our building. When the building was built the builder sold the parking spaces and most of the people, including myself, bought one spot. The builder was left with several spots which he didn’t manage to sell. I own two cars. May I park my second car in one of the builder’s places or park in the spot of a neighbor whom I know will not be using his spot (e.g., he went away on vacation) without asking for permission? I do not feel comfortable asking the builder for permission since I, as well as the other tenants, are not on good terms with him since we sued him in beis din for various defects.
Answer
At first glance it may seem that the answer to your question is that you may not use someone else’s parking space since it does not belong to you. What is yours, you may use, and what is not yours you may not use. However, while this may seem logical and may in fact be secular law, Torah law is based on morals as well.
In order to answer, we must introduce the concept of kofin al midas sedom which means that Torah law prevents people from behaving like the people of Sodom behaved. As it says in Pirkei Avos (5, 10), the motto of Sodom was, “What is mine is mine and what is yours is yours.” The people of Sodom were wealthy and did not want to share their wealth with anyone else and therefore, they codified this principle. In practice this meant that even if A suffers no loss, he does not allow B to derive any benefit from his possessions because they are his and his alone. By totally destroying Sodom, Hashem showed his vehement disapproval of this philosophy. Therefore we, who as Jews live a life that conforms with Hashem’s will, must avoid behaving in this manner. Therefore, Torah law prevents people from engaging in Sodom-like behavior. Many Rishonim (e.g., Tosafos, Rabbeinu Yona in their commentary to BB 12B) maintain that this is a Biblical rule.
Even though from the Mishna it seems that the first opinion disagrees, the Meiri writes that the first opinion in the Mishna only disagrees if there is some loss to the benefactor. If he will not suffer a loss all agree that this behavior is prohibited.
The Gemara (BK 20A-21A) discusses a different aspect of your question. The situation that is discussed by the Gemara is not whether a person may use another person’s property without permission but whether one who already used another person’s property without permission must, after the fact, pay for his use.
The specific case discussed in the Gemara was where a person lived in someone else’s vacant house in a manner that saved the tenant money but caused absolutely no monetary loss to the house’s owner, which the Gemara calls ze nehene veze lo choseir. Similarly, you want to derive benefit from other people’s property in a manner that benefits you without causing a loss to anyone.
We will start by studying the Gemara that deals with after-the-fact liability. After a lengthy discussion, the Gemara concludes that the squatter is not liable if he did not cause any loss to the owner. Many poskim and meforshim cite the explanation of the P’nei Yehoshua (commentary to Tosafos BK 20A) that the reason the one who benefited is not liable is because of the principle-kofin al midas sedom. (Chidushei Rav Nochum on BK 20A writes that it is evident from Tosafos that he understood the Gemara in this manner.)
The reason we must utilize this principle is because in Torah law one is generally liable for any benefit that he derives from another person’s possessions. The reason the squatter does not need to pay is because, since the benefactor suffered no loss, we invoke the principle kofin al midas sedom to free the beneficiary from paying for the benefit that he derived.
Thus, we see that after-the-fact this principle suffices to free the one who benefits from having to pay for the benefit that he derived. However, from the Gemara we do not have any proof whether, based on this principle, the owner can prevent someone from living in his unused property. Also, even if he can prevent the beneficiary, we do not know whether the beneficiary needs to ask for permission.
The first issue is ruled by the Ramo (CM 363, 6), based on the Mordechai (BK 16), in the context of one who lives on someone else’s property. He states that even though kofin al midas sedom, since the owner can earn rent from the property, he may evict the squatter from his property, even though he does not now intend to rent out the property.
This opinion that is ruled by the Ramo is one of two opinions that are cited by the Mordechai. The other opinion is the Ra’avyo who maintains that if the owner does not intend to earn money or otherwise use his property, he may not evict a squatter who does not damage his property. The Ramo rules the more lenient opinion, that even if the owner does not intend to utilize the property, he may evict the squatter, if he could earn rent.
Applying this ruling to your situation, if the parking spot is located in a place where it can be rented to someone, according to the Ramo its owner can evict you. But if it cannot be rented out (and the owner does not intend to use it himself in some manner), the owner cannot evict you because of kofin al midas sedom.
However, many Rishonim, including Tosafos (BK 20B, BB 12B) and the Nemukei Yosef (BK 8B), who cites the Re’o, Rosh and Ritvo, and others maintain that the principle of kofin al midas sedom does not force the owner of a property to allow someone else to enter into or place an object on his property, against the owner’s express will. Beis din can only force a person to avoid using his property or their joint property in a manner that will unnecessarily harm another person.
Even though the Ramo rules the other opinion of the Mordechai, many follow the latter opinion.
For example, the Sema (363, 14) explains that the reason SA rules (363, 6) that if the owner of a vacant house asks the squatter to leave and the squatter refuses to vacate, the squatter must pay for the subsequent benefit that he derived from using the house because kofin al midas sedom does not apply to that situation. Since this is not necessarily true according to the Mordechai (it depends if the owner could have rented out the house), it is clear that the Sema understood that the SA ruled like the opinion of Tosafos cited above.
Moreover, the Noda Biyehuda (CM 1, 24, cited by Pischei Teshuvo 363, 3) correctly claimed that the opinion of the Mordechai is the subject of a dispute in a different situation. This is evident from the Ohr Zorua BK 122-3 who is the source of the Mordechai but the Ramo did not have. However even the Ramo ruled there (CM 174, 1) that it is doubtful if the ruling of the Mordechai is authoritative since it is the subject of a dispute between the Rosh and Rambam.
Other Poskim (Shevus Yacov 2, 149: Nesivos 250, 16) also follow the opinion of Tosafos.
Therefore, if the owners of the vacant spots want to prevent you from using their vacant spots, beis din would not force them to allow you to park in their vacant spots without paying them, since their parking spots are their private property.
In your situation, the owners are not preventing you from using their spots, you just want to park without asking any questions.
Even if we maintain that you cannot force the owner to allow you to park in his spot, it does not imply that if you do not ask any questions you cannot park there. Rav Shimon Shkop (BK 19, 3) explains that the reason we do not force someone to allow someone to live in his property based on the rule of kofin al midas sedom, is because forcing someone to allow another person to use his property runs counter to the concept of ownership, since it shows that the owner has no control over his property. Therefore, the fact that we do not force someone to allow you to use his property against his will in no way indicates that you are not allowed to use his property without asking any questions, since in this situation it seems that kofin al midas sedom does apply.
In fact, we find several poskim and meforshim who state clearly that one is allowed to use vacant property as long as the owner does not expressly object. The Chasam Sofer (CM 79, venereh li) states that we hold that one is permitted to derive benefit from another person’s actions or property if it causes no harm or loss to the owner. This also is the ruling of the Beis Ephraim (CM 49) and the Nesivos (146, 9) because we apply the principle of kofin al midas sedom.
In conclusion: You may park your car in a vacant space if you know that you are not preventing the owner from using his spot, either for himself or for someone to whom he gave permission to use it. However, if the owner asks you to vacate the spot you must comply with his wishes and if you do not, you will have to pay.
