The Obligation to Give Advance Notice of the End of a Residential Lease Period

A property was rented for many years, as is common with business and commercial properties, which are rented for long periods both because customers become accustomed to the location and because this is how goodwill is built for the business. In the middle of the rental period, the municipality decided to remove the business, claiming that the building permit had been granted for residential use only and not for an exceptional use [from the perspective of the planning authorities and the local authority—the municipality—turning a residential apartment into a place of business is an act that requires obtaining a permit for exceptional use under the Planning and Building Law; without submitting an application for exceptional use, one cannot operate a business or office in the private property. Over the years many amendments were added to the provisions of the law that refer specifically to the type of occupation and the various restrictions concerning the property’s designated use, and each municipality has its own regulations as to what is considered exceptional use]. The municipality contacted the property owner and demanded that he evict the tenant, and also imposed fines on him for the past, and for every day that the business is not vacated.

Consequently, the landlord demands that the tenant vacate the property during the rental term. The tenant, however, argues that since he rented the property for several years and it was clear that it was for the use of the particular business in which he was engaged, this is his acquisition and his right to remain for the entire rental period, and the landlord must absorb the fines. On the other hand, the landlord argues that at the time he rented out the property there was no enforcement regarding this [or the municipality’s regulations changed], and therefore he agreed to rent out the property for operating a business; now that enforcement has begun, he claims that he did not agree to rent it on this understanding, and therefore demands evacuation of the rented premises. With whom does the law side?

The source of the law in a case where a defect arose after the beginning of the rental

In the Gemara, Bava Metzia (101b), it says: It is obvious, if his house fell down [i.e., the landlord’s house fell], he says to him: “You are no better than I” [and removes the tenant from the house he rented].

Rashi and Tosafot disagree in explaining the sugya. Rashi’s view (s.v. “lo”) is that during the rental term, the landlord may not evict the tenant even if his own house fell down, and he must rent another house for himself. The statement that he says to him “You are no better than I” was said only where they did not set a term for the rental, and regarding the notice period that a landlord must give a tenant—thirty days {as explained at length in the article “The Obligation to Give Advance Notice of the End of a House Rental Period”} before he intends to evict him.

Tosafot (there 102b, s.v. “be-chezkat”) discuss a tenant who claims, “I paid,” during the rental term, and explain that he is not believed. They derive this from the Mishnah (Bekhorot 8:6), that the father of a son is not believed to say that he paid the debt to the kohen before thirty days from the child’s birth, at which point the concern that the child was nonviable has passed. Tosafot ask according to Abaye (Bava Batra 5b), who holds that a borrower is believed with the claim, “I paid within the time.” They answer: therefore he is presumed not to have been redeemed, because the father fears that the son may die or that the money may be consumed within thirty days, in which case his son is not redeemed, as Rava said (Bekhorot 49a). A tenant, too, fears paying the rent in advance lest the house fall, or lest the landlord’s own house fall and he evict him, saying to him, “You are no better than I,” as we said above (101b).

It is clear from Tosafot that even during the rental term the landlord can say to the tenant, “You are no better than I,” and can evict him if the landlord’s house fell down. This is also explained in the Mordechai (remez 382–383), and this is the ruling of the Maharshal (siman 38).

The view of the Rosh and the Mordechai

The Rosh (Bava Metzia, ch. 8, siman 24) follows Rashi’s view, and so it is ruled in Shulchan Aruch (siman 312:1): one who rents a house, courtyard, bathhouse, or shop to another for a fixed term cannot retract and evict him during that term, even if the landlord’s house fell down and he has no place to live. It appears in practice that since the Shulchan Aruch rules like Rashi and the Rosh, and the view of the Mordechai and Tosafot is not cited by the major commentaries, the landlord cannot claim “kim li” in accordance with Tosafot and the Mordechai.

The halachic conclusion is that where one sold a property, and because of a reason that arose after the rental had begun the landlord wishes to cancel the rental, even where there is a clear assessment that had the landlord known in advance that such a situation would arise he would not have entered this transaction, the law is that the rental is not annulled. This is like a sale, which is not annulled because of a reason that arose to one of the parties after the sale; even if there is an assessment that had the seller known that this would happen to him he would not have carried out the transaction, nevertheless the sale is not annulled.

Where the damage to the landlord is caused by the rental itself

Despite what was written above, one can say that the landlord can cancel the rental based on an evident assessment that he did not rent it out with the understanding that the tenant would harm him through the rental itself, since the claim of duress stems from the rented property and not from something external, such as the house falling down. The Maharshal (Responsa, siman 38), discussing the above dispute among the Rishonim, explains that they disagree whether rental is compared to a sale. What is ruled in the Shulchan Aruch, and this is the view of Rashi and the Rosh, is that just as a sale is not annulled because of matters that arise later, so too a rental is not annulled because of matters that arise later. But Tosafot and the Mordechai disagree and hold that a rental is not like a sale: a sale is annulled only by an evident assessment that is “in his heart and in the heart of every person,” whereas a rental is annulled by any assessment. However, the reason for the distinction between sale and rental is not explained in his words.

Tosafot’s question: why every sale in which the item deteriorated should not be annulled due to an assessment

Tosafot (Bava Kamma 110b, s.v. “de-ad’ata”) ask on the Gemara’s statement that Rabbi Elazar ben Azaryah holds that if a woman was widowed from betrothal, she does not collect the additional amount of her ketubah, only the basic one hundred or two hundred, because he wrote it to her only on condition that he marry her. Tosafot ask: any person who buys something from another, if it deteriorates, should cancel the sale, saying that he did not buy it with this in mind. They similarly ask (Ketubot 47b, s.v. “shelo”) that anyone who buys a cow from another and it becomes a tereifah or dies, we are witnesses that he did not take it on such a condition. Tosafot answer that we are witnesses that he wished to enter into that doubt; that is, Tosafot understood that one who buys a cow from another may have bought it even though he could suffer a loss and the animal could become a tereifah. But later Tosafot write another answer: it is not comparable to one who buys an object and an unavoidable mishap happens to it, where we do not say that he did not buy it with this in mind and cancel the sale, because it does not depend on the buyer’s intent alone, for there is also the intent of the seller, who would not have sold it to him on his understanding unless he specified it.

It is clear from their words that if the buyer had first explicitly stipulated a condition, certainly the seller too would not have agreed to sell to him in such a way that he would bear responsibility if the object suffered an unavoidable mishap. Such an assessment certainly does not create a condition in a sale. According to this, the sugya in Kiddushin must be explained as a case where it was clear to the buyer that the sale depended on this matter, since the seller specified it, and it is considered as though he stipulated; and in a very clear matter it is also as though he had stated his words explicitly.

However, in a matter where it is uncertain whether an unavoidable mishap will occur to the purchased item, if he did not stipulate, it is not considered a condition in the sale, because perhaps the seller’s intent was that the buyer takes the item even with the understanding that it might suffer such a mishap. Similarly, where the seller did not stipulate and one can say that the buyer agreed to the sale on the understanding that if a loss occurs to the seller, the seller has taken this upon himself, in such a case one cannot cancel a definite sale because of the doubt.

The explanation of the Noda BiYehudah in the view of Tosafot

There are several approaches among the Acharonim in understanding Tosafot’s answer, but for brevity we will write the general principle: we do not follow an assessment in a matter dependent on two parties. The Noda BiYehudah (first edition, Yoreh De’ah, siman 69) innovates that everything Tosafot hold—that we do not follow an assessment in a matter dependent on two parties—applies only to a kinyan that has already been made, such as one who sold a cow and it became a tereifah. But to cancel an obligation, we do follow an assessment even though it depends on both parties’ intentions, such as canceling a shidduch when the betrothed woman’s sister converted out, or to be exempt from the obligation of dowry when his wife died. That is, it is clear from his words that one must distinguish between a kinyan that has already been made and completed, which is not annulled by an assessment, and a kinyan that has not yet been made, only that he undertook to make it; in that case, the law is that it is annulled by any assessment.

It follows from his words that there are three distinctions. A matter that is an assessment that he does not wish to enter that doubt at all, even if it depends on both parties—that is, it obligates the parties whether as an obligation or a sale—in such a case we follow the assessment of one party in order to annul an act already performed, such as a sale. In a matter where there is reason to say that he would have entered the risk, even though there is also an assessment that if he had known for certain that such a thing would happen he would not have done it, if the matter depends on the intent of both parties, one cannot annul it, like one who sells a cow and it is found to be a tereifah, and the like. But where the matter depends on the intent of one party, such as one who undertakes to give of his own volition, in that case we follow the assessment.

According to the Noda BiYehudah’s second distinction, it is clear that a matter where there is reason to say that he entered this risk is not annulled. Accordingly, the case where the landlord’s house fell down falls under this category: the rental is not annulled because of it. That is, even if it is clear that had he known in advance that this would happen he would not have rented it out, nevertheless, since at the time of the rental both parties obligated themselves to one another—this one to rent and this one to rent out—this means that they entered into the risk and relied on nothing happening. In such a case the law is that one cannot cancel it, for the landlord too does not want the tenant to cancel in a manner that would cause him losses.

The Rema’s view regarding a landlord who learns that the tenant has a contagious illness

The Rema (Responsa, siman 20, cited in the Shach, siman 312, s.k. 2, and in Netivot, Biurim, s.k. 1) discusses a case of a tenant who became ill with a contagious disease, and the landlord claims that he did not rent it out with this in mind, because he fears contracting the disease. He elaborates there on the principle that after the rental kinyan has taken effect, a claim of duress is ineffective; and this law follows all the more from the case where the landlord’s house fell down, where he cannot evict the tenant during the rental term, and all the more so in the case of illness.

It is clear from his words that the very fact that the landlord has nowhere to live, and he is outside while the tenant is inside, which is considered great duress, nevertheless the law is that duress does not annul the rental, since the kinyan has been completed.

In Netivot (there, Biurim, s.k. 3) he writes that even in a case of loss to the rental, such as the house deteriorating, he cannot evict the tenant. However, he cites the Mordechai that where the landlord has a great loss and also has no dwelling house at all, in such a case the landlord can evict him; but this too requires analysis as to the source.

The Aruch HaShulchan (there, se’if 3) brings the Rema’s view and its source from the Yerushalmi, and seeks to reject the proof from the Yerushalmi. He brings that some of the great authorities questioned this law, and explains the Rema’s view: he holds that even if the landlord’s house fell down, he cannot evict the tenant; nevertheless, where there is a great loss, we remove him, because there is an assessment that he did not rent it out on that basis, and this is no worse than all other assessments.

Therefore he concludes there that if the reason existed at the time he rented it out, it is certainly a strong assessment, and it is considered a mistaken rental, which even in a sale would be annulled if there had been such a disclosure of intent. But if the reason arose afterward, the law is that he cannot evict him.

The laws that emerge

Seemingly, according to what has been written, this is a dispute among the poskim whether in such a case, where duress arises after the beginning of the rental, he can cancel the rental. There is much to elaborate and discuss as to whether the question in this article is similar to these sugyot. For there is reason to distinguish: only where the house fell down and in the case of contagious illness is the duress connected to the body of the house, whereas in the case here it is duress caused by the rented property. Also, whether this is considered a reason that arose afterward, since in this location there had never been municipal enforcement regarding matters of exceptional use; or, since this is a law that exists and only in practice there was no enforcement, they should have been concerned about it. Sometimes, however, the regulations of exceptional use changed after the rental took effect, or the type of business changed. Therefore, in order to rule in practice, judgment is required after hearing all the details of the matter from the parties.

Practical recommendation

In order to avoid such cases of duress, which will cause disputes between landlord and tenant, it is therefore recommended to agree and write everything explicitly in the contract: in cases of duress or refusal by the authorities to allow operation of the business for any reason whatsoever, who is responsible for it, and who bears the payments and fines. When these matters are raised between the parties and everything is agreed in advance, and all possible scenarios are considered, much distress is thereby spared to the parties. It is therefore recommended to consult with an expert dayan before drafting the contract.

From “Torat HaMishpat”