Protected Tenancy — Key Money in Halacha [3]

As a continuation of the previous articles, in which we briefly presented the background of the Tenant Protection Law, the main points of the law, the definition of dina de-malchuta dina, as well as the opinions of the great poskim after the First World War who discussed this law. The main issue arose regarding apartments rented before this law was enacted, where during the rental period the Tenant Protection Law was enacted, and when the landlord wished to remove the tenant, the tenant claimed that under the law he had the possibility to remain under certain conditions. According to Rabbi Meir Arik zatzal, the law obligates the apartment owner; the Chavatzelet HaSharon disagrees and holds that the law does not obligate the apartment owner; and the view of the Chazon Ish is that if the tenant remains in the apartment without the landlord’s consent, he is considered a full-fledged robber. In this article we will present the view of the Dovew Meisharim, the Igrot Moshe, the Minchat Yitzchak, the view of Rabbi Yosef Shalom Elyashiv zatzal, and other dayanim. We will also discuss the inheritance rights of heirs with respect to this right.

The View of the Dovew Meisharim

The Gaon of Chebin, in his work Dovew Meisharim (Responsa, vol. 1, siman 76), discusses a case of someone who rented a shop with an apartment in which to live. After the law of key money came into effect, the parties reached a compromise between themselves regarding a certain sum, and they conducted themselves accordingly for several years. However, after some time the tenant wished to retract, arguing that according to dina de-malchuta dina he was obligated to pay only according to the value that existed before the war.

He rules that the law is with the landlord, since at the time the tenant reached the compromise with him the law was known, and he agreed to pay the agreed sum and paid it for several years; therefore, he understood and accepted it. He discusses at length the force of the law and dina de-malchuta dina, and cites the position of the Chatam Sofer (brought above) that according to all opinions we say dina de-malchuta dina.

However, regarding what the questioner wrote — that dina de-malchuta does not apply here, because that applies only where Jewish judges adjudicate the case, but not in a matter adjudicated in their courts — he wrote that this is not so. For the judgment is rendered according to Jewish law, only relying on the valuation of non-Jews, and consequently dina de-malchuta dina applies here [see there for the sources he brings for this].

The View of the Igrot Moshe

The Igrot Moshe (Choshen Mishpat, siman 72) cites the questioner who discussed the force of the key-money law, writing that under dina de-malchuta the landlord cannot remove the tenant even after the rental period has ended, so long as the tenant wishes to live there. At the beginning of his remarks he wrote that it is difficult to write about matters of dina de-malchuta dina for two reasons: first, because there is great confusion among the poskim and many contradictions, requiring extensive study and much time; and second, so that it should not appear that one is diminishing the honor of the government of his country, toward whom we are obligated to recognize gratitude for the kindness they do, etc. Therefore, he does not wish to write and deliberate on this.

But he discusses the matter of the question: that according to dina de-malchuta the landlord cannot remove the tenant even after his time has ended, so long as he wishes to live there. The issue here is not from the standpoint of dina de-malchuta, but concerns those who rented before the law was made; at that time, the rental was assumed to be only for the stipulated period, and the landlord was permitted to remove him, and it was necessary to deliberate whether the law of dina de-malchuta dina applies. But for those who rented after the law had already been enacted by the government, and they did not explicitly stipulate that when the time arrives the tenant would be obligated to leave, but rather rented without specifying, it is as though they stipulated that he rented to him on the understanding of the law of the government. The rent they set for two years means only that the tenant may not leave before two years, since the government made no law concerning the tenant, and the landlord therefore had to draw up a document preventing him from leaving; and also that the landlord should not be able to increase the rent even if the government permits an increase. Likewise, the landlord should not be able to remove him before two years, even if the government repeals its law. But if the government’s law remains in force, the rental is considered as though they stipulated that the term would be according to the law of the government: as long as the tenant wishes to live there, he may live there. If so, this is also automatically the law of the Torah, as within the rental term, etc.; all the more so since this is the practice, and thus the custom is also so.

The View of the Minchat Yitzchak

The Minchat Yitzchak (vol. 2, siman 86) was asked by the same questioner who asked the Igrot Moshe regarding the force of the key-money law and who is considered the muchzak, the one in possession. He cites the position of the Imrei Yosher that it is a doubt in law whether dina de-malchuta applies here, and the Netivot HaMishpat {brought in issue 19} rules in practice that in a doubt of law the tenant is considered the muchzak. In our case, since this concerns land and a regulation for the benefit of all the inhabitants of the state, according to most poskim dina de-malchuta dina applies; and perhaps even the Shach agrees regarding land, since the lands belong to them, even though it does not concern taxes. Therefore, one may not remove something from the possession of the muchzak. This is also the view of the Chatam Sofer (Responsa, Choshen Mishpat, siman 44), that we find in Chazal enactments for the public benefit; and there he also discusses the enactment of key money. However, he wrote that since apartments became more expensive, one can say that in this respect the tenant is the muchzak.

There he comments on what the questioner wrote: that after the First World War there was concern that people would be thrown into the street, unlike today, when there are many apartments. He also cites from the holy Gaon Divrei Chaim (Responsa, Choshen Mishpat, siman 35, at the end), who ruled as practical halacha that the one to whom the land belongs is considered the muchzak.

The Minchat Yitzchak brings that where something is done for the benefit of the inhabitants of the state, distinctions are not made between one enactment and another; and a matter done for the benefit of the inhabitants of the state depends on the dispute whether dina de-malchuta dina applies. He cites the Dovew Meisharim, who discussed only the rent on account of dina de-malchuta, and who holds that the one in possession is considered the muchzak. However, he brings that most poskim ruled that in a matter concerning the benefit of the public, all agree that dina de-malchuta dina applies; therefore, it is difficult to say “kim li” in accordance with the landlord, that he is considered in possession.

There he discusses at length the words of the Shach [this is not the place for it], and he explains the position of the Imrei Yosher: that the tenant is considered the muchzak only with respect to raising the rent; but regarding removing the tenant from the house, he relies on the words of the Chatam Sofer, that we find in Chazal enactments that merchants’ livelihood not be cut off, which is considered an enactment. He also discusses there at length the words of the Chatam Sofer [see there].

 The View of Rabbi Yosef Shalom Elyashiv zatzal

The Kovetz Teshuvot (Responsa, vol. 4, siman 202) discusses the law at length, and in the course of his remarks cites the Imrei Yosher and the Chatam Sofer. He adds that one may say that if the rental took place at a time when the law was in force, they rented it to him on that understanding; and even what they wrote regarding a term of rental was in the event that the law would be repealed, so that the rental would be for a fixed time. But as long as the law exists, he rented it to him on this understanding — that he would not be able to remove him, in accordance with the custom of the state, as explained in the laws of rental that everything follows the custom of the state.

It emerges that if the rental took place at a time when the law was in force, the tenant has the right to live in the apartment not only because of the law, but from the very rental itself, since they stipulated that the rental is according to the law, and he rented it to him on that understanding.

This is also explained in the notes of our teacher Rabbi Yosef Shalom Elyashiv (Arachin 21b), who cites from the monthly journal Ohel Moed, where they discussed the Tenant Protection Law. The value of money had fallen astonishingly, so that tenants were paying very little rent. One of the landlords arose and prohibited the house to the tenant by way of a konam, and they discussed there whether, even in such a case, in a place where there is dina de-malchuta dina for the rectification of society, people’s intention is that everything should be conducted according to the laws of the state; and it follows that the laws of the state are binding as a matter of law if they are for the purpose of rectification.

The View of Dayanim in Jerusalem

The Beit Din Tzedek of the Edah HaCharedit published a proclamation on 27 Kislev 5738, stating that every agreement made between an apartment owner and a tenant regarding the right to the apartment through key money is a right according to Torah law. A ruling was also published from the Gaon Rabbi Yisrael Yaakov Fischer zatzal that even if the Tenant Protection Law is repealed, every apartment owner is obligated to return to the tenant his share in the purchase of the apartment that he bought through key money. [See also Responsa Even Yisrael, vol. 9, simanim 152–153].

In Pitchei Choshen (Rental, ch. 8, note 8), he writes that in our time in Eretz Yisrael the concept of the right of tenant protection is customary, and since it is the custom of the state, we follow the rules of the Tenant Protection Law; and all batei din conduct themselves accordingly. Although sometimes the parties find themselves disadvantaged, one should follow the custom, for on that understanding they rented.

Likewise, if one transfers a protected apartment to another tenant, care must be taken not to diminish the owners’ share in the key money that is due according to the custom of the state. If the first tenant invested in the apartment, and because of this the value of the apartment increased, why should the owner benefit from what he invested? If there is a clause in the rental contract that renovations become the property of the owner, the law follows the condition; and if there is a clear custom, one should follow it. But where there is no contract and no such custom, this depends on the laws of yored — one who invests in another’s property.

The Tzitz Eliezer (vol. 5, siman 30) discusses at length the halachic force of the law, and at the end states that since this is a governmental law that became the custom of the state, one should conduct oneself in this matter according to the law.

In Teshuvot VeHanhagot (vol. 3, siman 468), he brings from the tenant who cites a report about Maran the Gri”z of Brisk, who lived in a key-money apartment and paid according to the government rate. The landlord rejected this proof, arguing that in the case of Maran the Gri”z, the landlord did not demand an increase in rent, and therefore there was no obligation upon him; but the right of the apartment owner [-the landlord] is to raise the rent. [See there further for his lengthy discussion].

A Widow Who Lived with Her Husband in the Apartment

It is ruled in the Shulchan Aruch (Even HaEzer, siman 94, se’if 1) that if the widow had lived with her husband in the apartment, the heirs cannot remove her. The Rema disagrees and holds that the heirs may give her a dwelling suitable for her in another house.

It is obvious that this applies only where the apartment belonged solely to the husband, and she has only a right by virtue of the condition of the ketubah; in this the Shulchan Aruch and the Rema disagree. But where part of the house belongs to the woman, the law is that she cannot be removed, even if she has other houses.

The Pitchei Choshen (Laws of Inheritance and Marriage, ch. 11, note 99) writes that according to what is customary in our time in Eretz Yisrael regarding key money, if the apartment is a key-money apartment, it follows that she has the right of a protected tenant even in her husband’s apartment, and the heirs cannot remove her nor reduce her dwelling, for she has a right in the apartment not by virtue of the condition of the ketubah, but rather a right like that of her husband; and the heirs have no right in the apartment, since the right does not pass by inheritance {see issue 19, where the details of the law on this were brought}. If the woman wishes to leave the apartment and rent it to another and receive the payment called key money, the heirs have no right at all to the key money she receives, for it is not included in the inheritance she receives; only it is possible that in such a case they are not obligated to provide her with another apartment.

However, when half of the house is hers and half belongs to the husband, if she wishes to leave the apartment and rent it for key money, it appears that the key money she receives must be divided between them: with respect to the part that is hers, all the key money is hers; and with respect to the part belonging to the husband, the portion received by the outgoing tenant belongs to her, but the portion that according to the law belongs to the homeowner must be given to the heirs. If the heirs also lived in the apartment in such a way that they have the right of protected tenants, they have a share in the key money. [There is a very lengthy discussion of this, and this is not the place for it].

Brief Summary

One should know that when an apartment is rented and the parties stipulate according to the Tenant Protection Law, it is clear that one must act accordingly. However, even if it was not stated explicitly at the time of renting the apartment that this is key money, but according to the known law the rules of tenant protection and key money apply, most poskim hold that this is binding according to halacha as well. However, if at the time the apartment was rented the law did not exist at all, and afterward, when the landlord came to remove the tenant from the apartment, the law had already been enacted, this is a matter of dispute among the poskim cited above regarding its halachic force, which depends on dina de-malchuta dina and on who is considered the muchzak. One should also know that according to the law, when the tenant of a key-money apartment passes away, the right passes to the family member who lived with him in the apartment; the halacha is that the entire right passes to that person, and the other heirs have no share in it.

From “Torat HaMishpat”