Lesson # 265 (part one) • Renting of Houses
We now embark on a topic that will take several lessons. A topic that almost everyone is familiar with, the leasing (renting) of real estate. The parties to the lease are the landlord (owner) and the lessee (tenant).
Unless otherwise indicated, I draw no distinction between houses and other types of structures and even vacant real estate, and therefore I employ the term real estate to mean all of them.
The rental of a house is one of the most important decisions that a person makes since it affects so many aspects of his and his family's life. Similarly, the location of a commercial enterprise may be of utmost importance to the success or failure of the enterprise. Both the owner and the lessee should consult a lawyer for the legal aspects of the rental agreement. The lease should clearly set forth their rights and obligations. But as so many lawyers and so many laymen find out to their dismay, even with well-drawn leases, there may be unanticipated problems, so much more so when the lease is not expertly drawn to reflect the desires and agreements of the parties, and even more so when the parties enter into the landlord/tenant relationship without any written lease.
CAVEAT: Unless otherwise specified, the leases mentioned in these lessons, may be either written or oral or partly written and partly oral.
These lessons set forth some of the laws that apply absent agreement to the contrary, whether because no lease was drawn or the lease failed to adequately provide for the questions that arose.
Halacha makes a distinction between leases that have specified terms of duration, whether for a short period, as, for example, for a day, or for an extended period, such as for 99 years, and anything in between, on the one hand, and leases of real estate that have no specified terms, on the other hand. Halacha also distinguishes between a lease for residential space and one for commercial space.
I have divided the lease for residential space into two sections: (1) where there is a definite term of duration of the lease, and (2) where the lease has no definite duration.
Anything stated in these lessons to the contrary notwithstanding, the agreements between the parties will generally be controlling. This applies to all of the terms upon which they have agreed, whether for the term (length of the lease), rentals to be paid, termination of the lease, holding over by the lessee after the end of the lease, destruction of the premises, changes in circumstances, repairs, paying of taxes and fees, and any other stipulations that are agreed upon between the parties.
In halacha, a lease for real estate is entered into the same way that real estate is purchased. In prior lessons it was stated "In many matters dealing with real estate the halacha specifically follows the law of the land."
The lease is effective even if the lessee has not yet entered upon the real estate; the lease protects him. The lessee may enter upon the real estate whenever he desires.
If the rented real estate is in poor repair before the lessee enters upon the real estate, halacha requires the owner to make repairs, unless it was otherwise specified.
A lease for real estate, whether residential or commercial, may or may not have a definite period of duration. It may have a definite termination date or until the rent paid is used up. A lease of definite duration for real estate may not be unilaterally rescinded, canceled, or revoked by the owner or the lessee without the consent of the other party.
Unless otherwise stipulated between the parties, a lease for a night's lodging is held to be for 24 hours, a lease for a weekend is held to be for 48 hours, and a lease for a wedding is deemed to be for 7 days.
The owner may not cancel the lease before the termination date even if he needs the real estate for himself, for example, when the house in which he resides collapses and he has no other place to live, or if the owner becomes impoverished and must sell his residence to obtain cash and now requires the rented real estate to live in.
The owner cannot compel the lessee to vacate the real estate because the owner wishes to rebuild the improvements on the real estate, even if the owner will provide the lessee with superior real estate during construction and the lessee will be moved back to the real estate when the construction is completed. Unless the lease provides otherwise, the lessee need not permit the owner's workers to enter into the rented real estate to make repairs.
The owner cannot compel the lessee to vacate the real estate even if animosity evolved between the parties unless such a reason for terminating the lease was part of the lease as negotiated between the parties.
Assume that the lease contains a provision that the owner can terminate the lease if he requires the real estate for his own use, and the owner sells the real estate to a purchaser. The purchaser cannot take advantage of this clause; the clause is held to be personal to the owner who entered into the lease and cannot be sold since the requirement of the new owner is not known when the sale takes place.
The rental payments provided for in the lease may not be unilaterally changed even if there is a rise or fall in the cost of living or inflation or deflation, unless the lease so provides.
The owner pleads that the lease was for a
definite term and the lessee pleads that it was for an indefinite
term, or the pleadings are reversed, the owner pleading that the
lease was for a definite term and the lessee pleads that the lease
was for an indefinite term. Each party who pleads that it was for an
indefinite term demands that he is entitled to notice of termination
of the lease, which notice was not given, and the party pleading
that it was for a definite period pleads that the term ended and no
notice is required. In all these situations the lessee has the
burden of proof. Should the lessee fail to produce proof, the owner
takes a hesseth oath (an oath of Rabbinic origin) and wins the case.
If there is a dispute regarding the rent or other monetary terms,
the defendant in the lawsuit must take a Torah oath if he admits
part of the plaintiffs allegations, and if he does not admit any
part of the plaintiffs pleading, he takes a hesseth oath and wins
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: firstname.lastname@example.org and via website: www.israelbooks.com and at local Judaica bookstores. Questions to email@example.com