Renting Homes - Rabbi Yehoshua Lipsh shlita

00:02 Speaker 1 You’re listening to “Lema’an Yishme’u,” a podcast from Machon Halacha Chabad.

00:09 Speaker 2 We’ll talk about the laws of renting homes. Perhaps as an introduction, let’s discuss the obligations of the tenant and the landlord—what each one is responsible for. Of course, when there’s a dispute about what the law or the custom is, or what the tenant and landlord are obligated to do, one has to go to a beis din. We’re not here to rule on disputes between tenants and landlords, but we can lay out some general principles about their obligations to one another. In practice, when someone rents a home, when someone rents a home out to another person, a transaction is taking place. Just as someone who buys a home acquires it, the person renting a home acquires it, but only for a fixed period. If someone sells a home, it becomes the buyer’s forever. When someone rents out a home, it belongs to the tenant for the agreed period. If he rents it out for a year, then during that year it belongs to the tenant. Of course, unlike an ordinary purchase, where the seller completely gives up his interest in the property, a rental agreement usually includes both what’s written in the contract and things that aren’t written there. Clearly, the landlord retains certain rights in the property itself. He doesn’t want anyone to damage it; he wants it to remain fit to rent out in the years to come, and so on. So on the one hand, it has the status of an acquisition; on the other hand, it’s an acquisition subject to certain conditions. Later in the class, we’ll see how various laws concerning the tenant’s and landlord’s obligations to each other follow from this. First of all, how does a rental actually take effect? Just as the Gemara and the halachic authorities say that land is acquired through payment, a deed, or taking possession, a rental of land is acquired through payment, a deed, or taking possession. In today’s

02:27 Speaker 2 world, when someone signs a lease for an apartment, or pays money to rent an apartment for a certain period, the acquisition takes place at that moment. Suppose someone signs a lease and the next morning the landlord decides he doesn’t want to rent him the apartment. He cannot back out. It’s like selling an apartment: you can’t back out afterward. The same is true when you rent out an apartment. If a valid deed was signed, you can’t back out—and the reverse is also true. In ordinary circumstances, not cases of duress where something unexpected happens, a tenant who has signed a lease can’t get up the next morning and say, “I found another apartment; I don’t want to go ahead with this.” Once someone signs a contract, it generally has the status of a deed, if it was done properly. Once the contract is signed, neither party can back out. From that point on, the apartment passes into the tenant’s possession for the fixed period they agreed on, according to the terms of their contract. As a result, some opinions say that even if they signed a contract and the tenant moved in for a month, and after a month he says, “This isn’t right for me,” and the landlord says, “Fine, if it isn’t right for you, that’s the end of it. You can leave; I release you”—according to those opinions, as long as they haven’t written a deed, the tenant still has rights and obligations concerning the apartment, just as with an ordinary purchase. Someone who bought an apartment can’t say the next day, “All right, I don’t want it.” He bought it. So to speak, if he wants to undo that, the only thing he can do is sell it back. The same applies here. If, after a month,

04:23 Speaker 2 they decide to end their arrangement, then ideally, for it to be halachically effective according to all opinions, they need to make a new acquisition. In other words, the tenant needs to transfer the apartment back to the owner. If he does so and the owner enters and takes possession of the home, that is an acquisition through taking possession. Once the owner has done that, the matter is settled: the lease and the rental period have effectively ended. The tenant can no longer demand the home, and the landlord can no longer demand rent, because the tenant has transferred it back to the landlord. When someone rents a home to another person, they can agree to whatever conditions they wish. If they explicitly include a condition when signing the contract, they have that right. Just as in a sale someone can stipulate—within halachic bounds, of course—that the buyer must pay a certain amount at certain times, and that if he doesn’t, the transaction is void, the same applies here. When a landlord rents out an apartment, he may draw up a contract requiring the tenant to meet conditions that the landlord has the right to request. But some things are treated as though they were written in the contract even if they weren’t. This is what is meant by the “custom of the place.” What does the custom of the place mean? Take the law, for example. Suppose that in Eretz Yisroel, according to many halachic authorities, government laws have no halachic force. Let’s assume that is the ruling. Even in that case, what people actually customarily do has halachic force. When I sign a contract to rent an apartment to someone, we are effectively agreeing at the time of signing that whatever is generally customary between a tenant and a landlord will apply, unless I explicitly write otherwise. For example, there are payments the tenant generally makes, such as

06:30 Speaker 2 municipal property tax, building maintenance fees, and the like. But if the agreement explicitly says that the landlord must pay them, then that is the agreement. If it doesn’t address them, we follow the custom. There are payments the landlord is generally obligated to make. For example, if there is some improvement to the property, or charges for the entire building that have nothing to do with the tenant personally—but if the landlord stipulated when they signed the contract that the tenant would pay them, then any monetary condition agreed upon between two people is binding. Again, that is according to the opinions that government laws themselves have no force. Now, when someone signs a contract without specifying otherwise, he generally signs on the basis of the custom of the place. So even if the laws have no force under the principle that “the law of the land is the law,” if that is how people conduct themselves and how the entire public acts in practice, it certainly has force as the custom of the place. Generally, when someone signs a lease or a contract of sale, it is subject to the custom followed by most people in that place, unless the parties explicitly agree otherwise. So as long as a lease doesn’t contain a clause that says otherwise, the law will determine what applies. Why does the law determine it? Because, in practice, that is the custom of the place. But I’m talking about the obligations between landlord and tenant—not about whether, in the event of damage, one could bring a legal claim against the landlord or the tenant. I’m talking about the ordinary obligations of a tenant to a landlord, and what most people actually do. So, for example, if we take tenant-protection laws or similar laws that protect tenants, then if they are customarily followed and it was not explicitly stated when the contract was signed that they would not apply here, they apply. Why? Because that was the custom at the time of the rental.

08:13 Speaker 2 Someone who has rented out a house to another person may sell it to someone else in the middle of the rental term. In other words, suppose Reuven owns a house and rents it to Shimon. Reuven can sell the property to someone else, and from then on Shimon will have to pay the rent to the new owner. The tenant living in the house cannot tell the landlord, “I don’t want you to sell the house now.” More than that: if it is customary for people to come into a house at certain times to view it, the tenant has to allow that. Why? Because normally, when someone sells a house, he brings prospective buyers in to see it. He cannot require the tenant to tidy the house, or to leave while they are there, and so on. The tenant has the right to live there and go about his business, but he cannot prevent people from entering when the owner wants to sell the house. As for the tenant himself, the halachah is that he may rent the house to someone else if he wants to. This is somewhat different from movable property. If someone rents a car, he cannot rent it to someone else without the owner’s permission. Why? Because the owner can say, “Listen, I know you. I know you take care of the car. But I don’t know how that other person will take care of it. I don’t know how he drives. I don’t want you handing the car over to someone else without my permission.” In the language of the Gemara: “I do not want my property entrusted to someone else.”

09:56 Speaker 2 “I don’t want my property in someone else’s hands. He might take it and not return it. I don’t know.” With a house, that concern does not really apply. Why not? Because the land remains where it is. A person cannot take the land and disappear with it. So it is harder to say, “I do not want my property entrusted to someone else,” and the halachah is that if a person wants to rent the house to someone else, he has the right to do so. It often happens that someone signs a rental agreement, moves into a house for a full year, and then, after six months, suddenly wants to move somewhere else. Unless they explicitly agreed otherwise, he may rent the house to someone else for those remaining six months. Of course, he passes the rent on to the owner, but he may rent it to someone else. There are also opinions that even if he manages to rent it out for more than he himself is paying, the difference belongs to the tenant—the person who rented the house—and not to the owner. But there is one limitation: you may rent it to people who will use the house as you would have used it. So if, for example, a young couple rented a three-room house, they cannot then rent it to a family of ten. The owner can say, “I don’t want that many people in my house.” It is clear that when more people live in a house, there is more wear and tear, and the house suffers damage. “I don’t want that.” So if the new household is larger, the owner can object. But if it is the same size—say, a young couple rented an apartment for a year and rents it to another young couple—then the

11:38 Speaker 2 owner cannot object. That is, unless they explicitly wrote otherwise in their rental agreement. When people make a condition about a monetary matter, the general rule is that the condition is valid. The same applies when someone rents out a property for a particular use. If he rented out a house as a residence, the tenant cannot turn it into a shop. If the owner has a particular objection, some reason for it, he can say, “I don’t want that.” For example, if the owner lives downstairs and rents out the upstairs apartment, he can say, “I don’t want you opening a shop there. I don’t want people coming and going.” Now, this class is not about the laws of nuisance to neighbors. But in many cases—and we will not go into the details of those laws now—the neighbors can indeed say, “We don’t want our neighbor turning his apartment into a shop.” We will not go into that law now; there are cases with considerations on both sides. In any event, back to renting. The halachic authorities discuss what happens if someone rents a place for a clothing store and one day decides to turn it into a food store. They say the owner cannot object: what difference does it make to you whether he puts clothes there or food? But if he turns it from a clothing store into a falafel shop or a pizza shop, the owner may object. The owner can say, “I rented it to you for use as a clothing store. A falafel shop or a pizza shop is something entirely different. There is smoke and steam, and different wear and tear on the walls, the systems, the electrical wiring, and so on.” So when changing the purpose of a rented property also changes how the premises are actually used,

13:24 Speaker 2 and that causes changes to the walls and so on, the owner can insist that he does not want that change in his property or in what is done there. Now, when we said earlier that the tenant can bring someone else into the house, that is subject to one condition: the person he brings in must be a respectable person. The owner cannot simply claim in every case, “Listen, he isn’t respectable.” But if he has evidence that this person does not keep up with payments, has debts and does not pay rent on time, or smokes, for example—or does other things, more serious than smoking, that pose a danger—then he can certainly say, “I don’t want people like that living in my house.” The same applies if he rents the apartment to a non-Jew. The halachah says that someone who rents his apartment in a building to a non-Jew is placed under a ban until he accepts liability for any damage that may result. In any case, the owner can say, “I don’t want my apartment rented to a non-Jew.” Also, if the tenant wants to leave and rent the place to someone else, the owner can say, “Leave the apartment and give it back to me. I want to take it back. I’ll release you from the rent.” The owner has priority over someone else. So if a young couple wants to move out and, say, have the tenant’s brother move in, the owner can tell them, “If you want, I’ll release you from the rent. Move out, and I’ll take it back on the same terms.” Although the house is currently in the tenant’s possession, it still belongs to the landlord. Therefore, any changes to the house, any renovations and the like, require the consent of both the landlord and the tenant. Since renting is, in effect, a form of ownership

15:08 Speaker 2 for a limited time, the owner cannot now decide to move the kitchen to another part of the house. The house is currently in the tenant’s possession, and he too has ownership rights for that year, so he can insist that no changes be made. On the other hand, the tenant cannot make changes either, because the house is his for only a year; it is not his forever. That is a general outline of the obligations of the tenant and landlord toward each other. Let us move on to the rental term. Generally, when people make a rental agreement, they set a particular term. Once they have set a term and it ends, the owner can demand on that very day that the tenant leave the house. After all, the agreement specified from the outset how long the tenant would have possession of it. So as soon as that time is up, the owner can tell the tenant, “The term is over, and I don’t want to renew the agreement.” That is his right. As we said at the beginning, this is essentially a sale for a limited time. He sold it to him for a year. Once the year is over, he can say, “I’m sorry, you have to leave.” The tenant cannot remain in the house against the landlord’s wishes. But during the term, neither the landlord nor the tenant can force the other to end the rental agreement, as we said earlier. The same applies to the rent. Once they have agreed on a particular rate of rent for the year, as long as they have not made a new agreement, the owner cannot suddenly say, “Listen, the price has gone up.” It has not gone up. It is like someone selling an item—the same principle again. If someone sold an apartment, he cannot come to the buyer the next day and say, “Listen, the price has gone up.” They agreed on

16:54 Speaker 2 Price, and that’s the end of the story. When people sign a rental agreement and it explicitly states the amount of rent to be paid, the landlord cannot raise the rent in the middle of the term. After all, it is a sale for a fixed period. Once the rental term ends, though, the landlord may raise the rent to an amount they agree on. Unless, that is, when they drew up the agreement, they explicitly wrote that the rent is linked to an index—say, a housing price index, as some agreements specify. If they expressly agreed at the outset that the rent would change during the term under certain conditions, then the rent can indeed be adjusted as they agreed. In practice, as we said earlier, during the rental term it is as though the landlord has sold the tenant the home for that period. The landlord cannot tell the tenant, “Listen, I want you to move out now. There’s an urban renewal project; move out and I’ll give you another home instead.” The tenant can say, “I want this home right now. I don’t want a replacement,” even if the other home is better and more attractive than the first. He has, in effect, bought the home for a period of time, and during that period he can insist on staying there. But if something in the home needs repair, if there is some damage, the landlord can ask to have it fixed. Perhaps—there are opinions that he cannot force the tenant—but he can ask him to allow workers in and so on. This comes up often when, for example, an entire building suddenly adds reinforced safe rooms or something similar. So under the law, it is somewhat difficult to compel the tenant. If the tenant

18:58 Speaker 2 really insists that he does not want workers entering his home, it may be that the landlord cannot legally force him to let them in. Still, it is appropriate to ask the tenant to agree, because this may depend somewhat on local custom. In places where the custom is to go ahead when an offer comes from the government to build, or when there is government assistance, assistance from various offices, or an initiative by the neighbors, there may be some basis in custom to compel him. So in practice, the landlord can ask, but cannot force the tenant to let him carry out the renovations and repairs. The tenant, for his part, can demand a reduction in rent. He can say, “I didn’t move in here expecting people to be coming in and out of the home all the time. I understand that you want to add to the home now to increase its value and so on, but I agree to let the workers in only if you reduce my rent during that time, because living here will be less comfortable.” He has the right to demand that the landlord reduce his rent.