When May I Remove a Tree? Part II

The Midrash teaches that Yaakov brought with him to Egypt the shittim trees that would be planted so that the Bnei Yisroel would later be able to leave Egypt with wood to build the Mishkan. There is no halachic problem with uprooting non-fruit-bearing trees for lumber, but there is at times a halachic problem with uprooting fruit trees for lumber or other use. So, this provides an opportunity to discuss…

Question #1: Darkening Peaches

“A peach tree is now blocking sunlight from reaching our house. May we cut down the tree?”

Question #2: Building Expansion

The Goldbergs purchased a house hoping to expand it onto its lot that contains several fruit trees. May they remove the trees to expand their house?

Question #3: For a Shul

Congregation Ohavei Torah purchased a plot of land for their new shul building, but the property contains some fruit trees. May they chop down the trees for the mitzvah of building a new Beis Hakenesses?

Question #4: For a Sukkah

“We just moved into a new house, and the only place where we can put a sukkah is in an area that is shaded by a fruit tree. May we chop down the tree in order to have a place to build our sukkah?”

In a previous article, we discussed several issues concerning when it is permitted to remove or destroy a fruit tree. The Torah teaches that when going to war one may not destroy fruit trees unless doing so serves a strategic purpose, and that in general it is forbidden to destroy fruit trees randomly. In that article, I mentioned that there is a dispute among authorities whether one may raze trees in order to build a house in their place. We also learned that the Gemara considers it dangerous to destroy fruit trees, and, according to some authorities, this is true even when there is no prohibition involved in razing the tree.

A Shady Deal

At this point, let us refer to our opening question: “A peach tree is now blocking sunlight from reaching our house. May we cut down the tree?”

This actual question was addressed to the Chavos Yair, a great seventeenth-century, central-European posek.

Based on the opinion of the Rosh (Bava Kamma 8:15),who permitted cutting down a tree in order to construct a house, the Chavos Yair allowed chopping down the offending peach tree (Shu”t Chavos Yair #195). However, the Chavos Yair rules that this is permitted only when one cannot simply remove some branches to allow the light into his house. When one can remove some branches and spare the tree, the Chavos Yair prohibits chopping down the tree since it is unnecessary to destroy the entire tree. Even though the branches will eventually grow and again block his light, the Chavos Yair does not permit chopping down the entire tree, but requires one to repeatedly trim it. Thus, although he accepts the Rosh’s ruling permitting removing a tree for the sake of a dwelling, the Chavos Yair notes that this is permitted only when one cannot have the house and eat the fruits, too.

Expanding Living Space

The Chavos Yair further rules that the Rosh,who permitted chopping down a tree to allow construction on its place, only permitted this for an essential need of the house, and not merely to make the house nicer, such as to widen his yard or to provide a place to relax.

At this point, we can probably answer another of our opening questions. The Goldbergs purchased a house hoping to expand it onto its lot that contains several fruit trees. May they remove the trees to expand their house?

Even according to the Rosh, they may remove the trees only to provide something essential for the house. Thus, if the need is essential, this heter will apply. (However, we will soon share a different possible solution.)

Some Are Stricter

The Chavos Yair follows the Rosh’s approach and permits removing a fruit tree if there is no other way to build a house.However, not all later authorities are this lenient. When asked this exact question — “May one cut down a tree to construct a house?” — the Netziv,one of the leading authorities of nineteenth-century Lithuania, was not comfortable with relying on the opinion of the Rosh. Rather, he concluded that there are early authorities who disagree with the Rosh and permit razing a fruit tree only in the three situations that the Gemara mentions: When the tree is more valuable as lumber, when it is producing almost no fruit, or when it is affecting the growth of other fruit trees. In the first two instances, it is no longer considered a fruit tree. The Netziv (Shu”t Meisheiv Davar 2:56) provides two different reasons why, if it is still considered a fruit tree, one cannot remove it.

(1) One may chop down a fruit tree only when it is damaging other fruit trees.

(2) Chopping down a fruit tree is permitted only when removing it provides immediate benefit. However, when one clears a tree to make room for construction, there is no immediate benefit. The benefit is not realized until one builds the house — which does not take place until later,and we do not see from the Gemara that this is permitted.

Following this latter approach, it is prohibited to destroy older trees and replace them with new ones, and halacha-abiding fruit growers must wait until their fruit trees are hardly productive before replacing them with new saplings.

At this point, I refer back to the next of our original questions: 

“Congregation Ohavei Torah purchased a plot of land for their new shul building, but the property contains some fruit trees. May they chop down the trees for the mitzvah of building a new Beis Hakenesses?”

What About for Temporary Use?

This case is fairly similar to an actual shaylah that is discussed by the Yaavetz (She’eilas Yaavetz 1:76), a prominent18th century posek in Germany. A community is renting a house from a non-Jew for their shul. The number of congregants is now, thank G-d, exceeding the size of the shul building, and the gentile owner has allowed them to expand the building on which they still have nine more years on their lease. However, there is only one direction in which they can expand their building, and do to so would require uprooting a grape vine. The gentile owner has permitted them to rip out the vine for this purpose. The community’s question is whether expanding the shul is a valid reason to permit ripping out a grape vine, which is halachically considered a fruit tree. The question is more significant in light of the fact that the community’s benefit may be only temporary — the gentile landlord may not renew their lease when it comes up for renewal, and they may then need to look for new quarters.

The Yaavetz ruled that even the temporary use of a shul is a valid reason permitting the ripping out of the grape vine. However, because of his concern that it is dangerous to do so, he advises hiring a gentile to uproot the vine. Since the mitzvah of destroying fruit trees is not included among the mitzvos that a ben Noach must observe, the gentile is not required to observe this mitzvah and therefore it is not dangerous for him to remove it.

The Yaavetz then mentions another factor. In every instance mentioned by the earlier authorities, it was not possible to replant the tree that is being removed in a different place. The Yaavetz suggests that there is no prohibition to uproot a fruit tree if one will replant the tree elsewhere. Thus, he concludes that even when no other solution exists to permit destroying a fruit tree, one may remove it by its root and replant it elsewhere, and then use the land for whatever one chooses.

Saving the Goldbergs!

The Yaavetz’s suggestion is very welcome news to the Goldbergs. They purchased a new house hoping to expand it onto the huge lot that they have that contains several beautiful fruit trees. May they remove the trees to expand their house?

According to the Yaavetz, they may remove the trees and plant them elsewhere, and then expand their house onto the extended lot.Again, I suggest that the Goldbergs check whether this relocation of the tree can realistically be done.

There are a few concerns about relying on this ruling of the Yaavetz. First, I have been told that although the Yaavetz may have known that this can be done, the assumption among today’s experts is that a transplanted mature fruit tree will not survive. Thus, this will be considered destroying the tree,

Furthermore, even assuming that the tree can be successfully replanted, the ruling of the Yaavetz is not without its detractors. The Chasam Sofer (Yoreh Deah #102) the posek hador of early nineteenth-century central Europe, concludes that one should not rely on this idea of the Yaavetz to remove a tree when other lenient reasons do not apply. However, he does rule that even when halacha accepts that one may uproot a fruit tree, if one can replant it one may not destroy it, since the demolition of the tree is unnecessary. Thus, if a fruit tree is damaging other trees, one may destroy it only when replanting it is not an option.

Shady Mitzvah

At this point, I would like to discuss our fourth opening question:

“We just moved into a new house, and the only place where we can put a sukkah is in an area that is shaded by a fruit tree. May we chop down the tree in order to have a place to build our sukkah?”

This exact question was asked of Rav Tzvi Pesach Frank, who was the Rav of Yerushalayim for many decades until his passing in 1960. Rav Frank cites and analyzes many of the above-mentioned sources, and is inclined to be lenient, reasoning that the performance of a mitzvah cannot be considered a destructive act. He concludes that one should have a gentile remove it, but not as an agent for a Jew, although he does not explain how one accomplishes this (Shu”t Har Tzvi, Orach Chayim II #102).

Conclusion

Thus we see that there are different conclusions as to when one may destroy a fruit tree for a valid reason, and each person should ask his own rav what to do.

The Ramban explains that the reason for the mitzvah is that one should have trust in Hashem that He will assist us in vanquishing our enemies and then we will be able to use the fruit from this tree. Destroying the tree when this serves no strategic benefit means that we think we will never use it. Rather, one should feel that one will gain from this tree as soon as the enemy is vanquished. We should assume that the area and all it contains will become our property, so why destroy the tree growing there innocently? One should take care of this tree just as one would take care of a tree that is already my personal property.