May one build a Sukkah in a public property [i.e. street, sidewalk, public lawn etc]?[1]
Initially, one may not build a Sukkah on public property, such as on a city street or sidewalk and the like of places that people pass by. This applies even if the entire city is of Jewish population and certainly the Jews do not mind one building his Sukkah there.[2] [Thus, even in Eretz Yisrael, a Sukkah may not be built in public property where people pass by.[3]] One is therefore to protest against anyone who makes a Sukkah on public property. Nevertheless, Bedieved[4] if one built a Sukkah in public property, he fulfills his obligation. [However, some Poskim[5] rule one may even initially build a Sukkah in a public property and say a blessing, if another space is not available, and that so is the custom.[6] This especially applies if one has received permission from the city municipality.[7] However, this only applies if the Sukkah does not disturb the passersby.[8] Practically, those who follow the rulings of Admur are to initially be stringent, unless they have nowhere else to build their Sukkah and the municipality does not mind and they are not in the way of the public passersby.]
May one say a blessing in such a Sukkah:[9] If one transgressed and built a Sukkah in a public property although he fulfills his obligation nevertheless, he may not say a blessing “Lesheiv Basukkah.”[10]
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Summary: It is initially forbidden to build a Sukkah in a public area where people pass by, and one who does so may not recite a blessing when dwelling in such a Sukkah. However, if one has no other area to build his Sukkah, then one may be lenient to build it in a public area, so long as it does not interfere with the passersby of that area [i.e. on the lawn by the side of a sidewalk], and one receives permission from the municipality to do so. Q&A May one build a Sukkah in a public area that people do not pass by, such as a forest or field?[11] Yes, one may do so as people do not pass by this area, and the restriction only applies to an area that is actively used by the public to walk through. If one does not have a permit to build a Sukkah on his own property, may he nevertheless build a Sukkah there?[12] Yes. If the city municipality gave permission for one to build his Sukkah in public property, may one do so?[13] Yes. Must one receive explicit permission from the municipality, or does it suffice that they ignore and do not fine one for doing so? Some Poskim[14] write that explicit permission from the municipality is not required, and so long as the city knows about the building and does not protest it, then it is considered as if permission has been given.
May one build his Sukkah on the sidewalk?[15] No. One may not do so as it blocks the space of the passersby. May one build the Sukkah in the public area that is directly in front of his house? Some Poskim[16] rule that one may do so for up until four Amos in front of his home, as it is considered his property. [Vetzaruch Iyun if this would apply even to a sidewalk.] May one build a Sukkah in the joint property of an apartment complex, such as in the parking lot, or garden/courtyard? One may only do so if he receives permission from the building management, and/or[17] the occupants of the building. This applies even if one owns an apartment or lives in the complex.
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[1] Admur 637:11; Rama 637:3; Yerushalmi Sukkah 3:1 “Gamilel Zavga built a Sukkah in the Shuk and Reish Lakish [or Yehoshua Ben Levi] passed by and asked him who permitted him to do so”; Or Zarua Sukkah 302; Hagahos Ashri Sukkah 16; M”A 637:3; Elya Raba 637:4; Piskeiy Teshuvos 638:3; Nitei Gavriel 4:3
Other opinions: See end of this paragraph.
[2] The reason: The reason for this is because the city belongs to the whole world, including gentiles which certainly do mind if one places a Sukkah there, and hence if one builds a Sukkah there it is considered [like] a stolen Sukkah [i.e. built on stolen property]. [Admur ibid; M”A 637:3; Machatzis Hashekel on M”A ibid; M”B 637:10; See Admur Hilchos Gezeilka 33; Michaber C.M. 162:2]
Why is this Sukkah not similar to a borrowed Sukkah: Now although one fulfills the Mitzvah of Sukkah if he builds it on stolen property nevertheless Lechatchilah one may not live in a Sukkah that is on stolen property being that the verse states Taaseh Lecha and such a Sukkah is not actually yours. This is not similar to a borrowed Sukkah being that when it is borrowed, he has permission to use it and it is hence considered his for all intents and purposes of Sukkah. [Admur ibid]
[3] Setimas Haposkim; Implication of Yerushalmi ibid who records a story that most likely occurred in Israel; See Hagahos Chasam Sofer 637
Other opinions: Some Poskim rule that in Eretz Yisrael, a Sukkah may be built in public property, being that gentiles have no ownership over the land of Israel. [Hagahos Chasam Sofer 637 in name of Chidushei Harshaba Chapter 6 in Bava Kama; Toafes Rieim O.C. 30; Daas Torah 637:3; Nitei Gavriel 4:3]
[4] However, initially he may not do so [as aside for the stealing prohibition] as the Sukkah is not considered actually his, and the Torah stated “Taaseh Lecha,” that it should be yours. It is not similar to a borrowed Sukkah which was lent to him with his permission and is considered like it is actually his. [Admur 637:11]
[5] See Elya Raba 637:4, brought in P”M 637 A”A 3, “Therefore, in my opinion one should not protest those who do so”; Mamar Mordechai 637:4; Bigdei Yesha; Mur Ukeztia; Beis Meir; M”B 637:10 and Biur Halacha 637 “Vichein” “Those who are accustomed to be lenient in this are not to be protested, as many Poskim are lenient”; Piskeiy Teshuvos 637:3
[6] See Darkei Moshe 637:1 “However, I have not seen people be careful in this.”; M”A 637:3 who writes that some are not careful in this, although questions it.
The reason: As the gentiles do not mind at all, and it is hence considered Shoel Midaas. [Beis Meir ibid; Bikureiy Yaakov ibid, brought in Biur Halacha ibid]
[7] P”M 637 A”A 3; Machatzis Hashekel on M”A 637:3 based on Rama C.M. 417:1; Pischeiy Teshuvah 637:4; Bikurei Yaakov 637:6 based on Rama C.M. 162:1, brought in Biur Halacha ibid; Shoel Umeishiv 128, brought in M”B ibid; See Rama C.M. 417:1; Beis Yosef 417 in name of Rashba
[8] M”B ibid and Biur Halacha ibid, that perhaps this applies according to all
[9] Admur ibid; M”A 637:3; Derech Hachaim 16;
Other opinions: Some Poskim rule that one may recite a blessing on such a Sukkah and that it is not considered a Bracha Levatala. [Elya Raba 637:4, brought in P”M 637 A”A 3; Mamar Mordechai 637:4; Bigdei Yesha; Mur Ukeztia; Beis Meir; M”B 637:10 and Biur Halacha ibid; See Kaf Hachaim 637:16 who concludes Safek Brachos Lihakel, although writes not to protest against those who are lenient to say a blessing
[10] The reason: The reason for this is because since the Sukkah has come to one’s hands through [the] sin [of stealing], therefore it is not considered like one is saying a blessing but like one is blaspheming Hashem. [Admur ibid; See Admur 11:12; Bava Kama 94a]
[11] Implication of wording of Admur ibid; See M”B 637:10 and Biur Halacha 637 “Vichein” “It’s possible that perhaps only by the marketplace where there are passersby is it a problem, as opposed to the sides of the public area near one’s home.”
[12] Piskeiy Teshuvos 637:3; Nitei Gavriel
[13] See Rama C.M. 417:1; Beis Yosef 417 in name of Rashba; P”M 637 A”A 3; Machatzis Hashekel on M”A 637:3 based on Rama C.M. 417:1; Pischeiy Teshuvah 637:4; Bikurei Yaakov 637, brought in Biur Halacha ibid; Shoel Umeishiv 128, brought in M”B ibid
[14] Bikureiy Yaakov 637:6, brought in Biur Halacha 637:3 “Vechein”; See also Beis Meir 637 recorded in Biur Halacha ibid
[15] See M”B and Biur Halacha ibid; See also Shoel Umeishiv ibid that the four Amos of street before ones house is considered ones property. Vetzaruch Iyun; See Nitei Gavriel 4:3
[16] Shoel Umeishiv 1:128; Pischeiy Teshuvah; M”B 637:10; Kaf Hachaim 637:17
[17] Tzaruch Iyun if the building management can give permission despite the protest of other tenants.
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