A Sukkah on the Sidewalk
It is quite common that restaurants build a Sukkah for patrons to eat in over the Sukkot holiday on the sidewalk right in front or on the side of the restaurant. Sometimes, this can be done in a perfectly legal manner and without blocking pedestrian traffic. Other times, however, the Sukkot become a real nuisance to pedestrians. Is such a Sukkah Kosher and have those who eat in it fulfill their obligation?
A Stolen Sukkah
The Gemara (Sukkah, Ch. 3) explains that our Sages expounded the verse “A holiday of Sukkot shall you make for yourself” to mean that a Sukkah may not be stolen, for one does not fulfill one’s obligation using a stolen Sukkah.
Land Cannot be Stolen
The Gemara and Rishonim explain that although it is certainly forbidden to use any kind of stolen Sukkah, nevertheless, we have a rule that if one trespasses on another’s property, although this is certainly forbidden, the land is not considered stolen. Only items can be considered stolen, but land always remains in the possession of its owner.
The same applies to a Sukkah in that if one enters someone else’s Sukkah without permission and eats there, although this is certainly forbidden, this does not constitute a stolen Sukkah.
A Sukkah on Top of a Wagon
The law of a stolen Sukkah only really applies when one steals the Sukkah itself, such as a Sukkah on top of a wagon or boat or if one steals a Sukkah and erects it in one’s own property. In any of these cases, one will not fulfill one’s obligation since the Sukkah itself is what was stolen.
The Bottom Line
Halachically speaking, if one sits and eats in a restaurant’s Sukkah which was built on the sidewalk illegally and impedes pedestrians, one has still fulfilled his obligation since this Sukkah is built on public property and is not considered a stolen Sukkah. (Shulchan Aruch Ch. 637, Chazon Ovadia Sukkot, p. 53)
