Lesson # 267 (part three) • Renting of Real Estate

This is the last lesson dealing with renting of houses and contains miscellaneous laws.

As I write this lesson, the world is still reeling from tsunami. On an infinitely smaller scale, what if a natural disaster hits the area where the real estate is leased?

Rabbi Yosef Karo calls chapter 321 of Hoshen haMishpat "One Is a Lessee of an Irrigated Field or an Orchard and It Dried Up"; he calls the next chapter "One Is a Lessee of a Field and It Was Consumed by Locusts or It Was Blasted [by Storms]." The topics are similar since in both situations the lessee fails to reach the anticipated potential because of natural calamities, in the one case drought and in the other, locusts or hail.

The parties enter into a rental agreement for a farm and/or an orchard. Halacha describes the method of irrigation of farms in two ways: (1) by adequate rainwater, or (2) if the rainwater is inadequate, by irrigation streams from a river or a well. What if the source of water dries up? Either there is no rain or the well or river dries up. The lessee will not be able to produce the amount of grain or other produce that was anticipated. Or what if the farm is plagued by locusts or blasted by storms or hail? Does the lessee have any respite from the payments he is to make to the owner? If the lessee is a sharecropper, then both the lessee and the owner will suffer since the sharecropper pays only a fixed percentage of what is produced, but the tenant-farmer pays a set rental regardless of the production.

Halacha recognizes a distinction between (1) renting "this field in which we are standing," making the conditions of the field to be as when they are standing there; (2) renting "a field;' so that the conditions at the moment of renting are not the criteria for what the field has to be. (In this last instance the field is specified but since the parties were not standing in the field and the owner does not state "this field," he makes no representations as to its continued condition.) The codes speak of similar events happening to orchards of trees. The laws are similar to that of farms.

Natural Calamity on This Farm
Assume that the lease is for a field that is irrigated from a well or spring and the well or spring dries up. If there is a source of water available from a nearby river from which the lessee can fetch, albeit with great effort on his part, and he fails to do so, there is no rental deduction allowed to the lessee. (Nowadays, in many countries there are tank trucks or pipes that can bring water closer to the farm. And if the lessee is a sharecropper, then Beth Din will estimate how much he would have produced had he made the effort to obtain water. Conversely, if there is no water to be had at a reasonable distance and the lessee none- the lesse extends his efforts and obtains water for the crops, he is to receive a reduction in the rent if he is a tenant- farmer, or a larger proportion of the crop if he is a sharecropper. The reduction depends on the loss sustained by the lessee.

However, if at the time of the rental it was the clear intent of the parties that the irrigation as it was at the time was included in the rental, then if the irrigation system of the rented farm dries up, there is a reduction in the rent. The example frequently given is that the owner and lessee are standing in the field and the owner stipulates that this is the field that I am renting to you. Although he does not explicitly state that the conditions that exist are warranted to continue to exist, it is held that this is the intent of the parties and if there was an adequate water supply at that time, it is implicitly warranted that this will continue. Thus, any loss in the water supply is sufficient to grant the lessee a reduction in the rental. This exception should be used sparingly and only if Beth Din is fully convinced that this was the clear intent of the parties.

What has been said regarding loss of available water applies equally if the farm is rendered unfarmable because of an invasion of locusts, or because the crops have been smitten by a blight, or blasted by hail or storms. In the unlikely situation where only this farm has been so struck, then there is no reduction in the rental.

Natural calamity in the entire area
If the entire area suffers a drought, of the water supply, so that the river also dries up, there is a reduction in the rental. In halacha this is called makat medina, a plague has hit the community. Similarly, if the entire area is struck by locusts or blasted by tempests and hail that destroys the crops, there is a reduction in the rental. The owner cannot plead that it was the lessee's misfortune that caused the calamity; since it affected all of the fields in the community; and all farm owners must bear such a loss. The foregoing actually applies only to the tenant-farmer; it has no application to the sharecropper, since he pays a percentage rent, and if he harvests nothing or reduced crops, the owner suffers proportionately. There are situations where the cases are analogous to natural calamity in the entire area. There is a reported case whereby the duke of a duchy in Italy granted certain people licenses to be moneylenders in his stalls in the market- place. The license also included the right to sue borrowers in the courts of the duke. These licenses were given in perpetuity. One of the moneylenders, Reuven, sold his license to Shimon for several years. After a year the duke abolished the right for the licensees to be able to use his courts to collect the debts from borrowers, and the license decreased in value.

Shimon pleaded that he was entitled to a reduction in rental since the duke's decision was tantamount to a calamity befalling all of the licensees, and analogous to the drying up of the water supply. The Beth Din held that Shimon was entitled to a reduction on the rental. However, there was a dissent that held that reductions resulting from calamities applied only if the calamity had already occurred, as when the water supply had already dried up and not to future calamity, such as the duke’s court no longer being available to the lenders. The dissent states that since there was a change in conditions Shimon should either cancel the sublicense or pay the full rental to Reuven. There is the case of Reuven renting a house from the owner Shimon for two years and the entire rent was paid in advance. During the rental period, a plague struck the city and a majority of the inhabitants fled the city; a minority remained. Reuven, the lessee, also fled and left the house vacant. When the plague subsided, the inhabitants returned to the city and Reuven sought a rebate in rent for the period that he was out of the city; Reuven pleaded that this was a case of a calamity in the entire area. The majority opinion held that it was a calamity of an entire area and thus Reuven was entitled to a rent abatement.

The subject matter of this lesson is more fully discussed in volume IX chapter 312 of A Restatement of Rabbinic Civil Law by E. Quint.  Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il

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