Laws of hefker during shemitah
Do we need to ask or can we take without permission?
During the shemitah year, produce that belongs to the shemitah year are ownerless (fruit: if they began to develop during shemitah, vegetables and herbs if harvested during shemitah). During the shemitah year, they are actually hefker in a unique way: they belong to every Jew.
Nevertheless, the Sages require us to ask permission so that we do not become accustomed on non- shemitah years to enter gardens and fields and take produce without permission.
If there is a hefker sign there is no need to ask.
What about if the owner says no?
According to some, the owner does not have the right to deny access, since the produce is not his, but it belongs to Hashem (Kerem Zion). According to this opinion, it is permissible to take anyway.
Others, though, Rav Kook included, hold that if the owner says no, the owner is not performing the mitzvah of hefker but it is nonetheless forbidden to take produce from their garden or field. This is the mainstream ruling.
Can we go into any orchard and harvest fruit once the fruit has kedushat shevi'it?
Today the vast majorities of fields and orchards are either sold through heter mechirah or work with an otzar beit din. Some farmers do relinquish ownership and let the land lie fallow.
Heter mechirah fields and orchards are not ownerless. You must pay to purchase such produce, just as in non-shemitah years and it is forbidden to trespass in such areas.
Otzar beit din - It is permissible to harvest a week's worth of produce in an otzar beit din field or orchard, only if you agree to cover the beit din's expenses for watering and treating the produce. In any case, you should ask first.
Open areas, parks, and public areas There are often olive, fig, and pomegranate trees planted in public parks and areas. Technically, it is possible to harvest a small amount for a week's worth of consumption while handling the fruit according to the laws of kedushat shevi'it.
It is proper to ask the local authority for the areas if it ok to harvest the trees. It is permissible for such authorities to prohibit harvest if they are concerned that people will destroy the plants.
It is permissible to go into fields with hefker signs and pick a week's worth of kedushat shev'it produce without asking or paying.
In any case, when harvesting take care to do so in a way that will not harm the plant or tree. The produce is ownerless but not the trees.
Fencing gardens and locking fences
Not only is produce ownerless during the shemitah year; the land it grows on is also ownerless. That means that any Jew is allowed to enter one's field or garden to pick fruits or vegetables with kedushat shevi'it.
It is forbidden to build a fence during shemitah in one's garden to prevent Jews from taking produce. This is even true if one intends to give out the fruit to the poor.
However, there is no need to tear down fences (or to make openings in them) that are already standing from before the start of the shemitah year.
Ta'amei Hamitzvah (rationale): The fact that any Jew can enter our property and pick fruit underscores the fact that the land belongs to Hashem and develops our trait of generosity and humility.
Is it ever permissible to lock the fence?
The Chazon Ish was asked this question. He replied that it is possible to lock the fence and hang a sign telling people where and when they can receive a key to access the produce.
This solution makes it possible to grant access to Jews, and prevent entry to the following: Thieves, Non-Jews, Animals.
As well, people who do not know how to properly handle produce with kedushat shevi'it, when you can't explain (this applies to keeping it open at night).
