A Landlord Seeking to Terminate a Lease Due to Ones

A property rented for many years, as is common with business and commercial properties, which are rented for long periods both because of customers’ habits and because this creates goodwill for the business; and 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 a nonconforming use [from the perspective of the planning authorities and the local authority—the municipality—turning a residential apartment into a business is an action that requires obtaining a permit for nonconforming use under the Planning and Building Law; without submitting an application for nonconforming use, it is impossible to operate the business or office in the private property. Over the years many amendments have been added to the sections of the law that refer specifically to the type of occupation and the various restrictions concerning the property’s designated use, and every municipality has its own regulations as to what is considered nonconforming use]. The municipality approached the owner of the property 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, but the tenant argues that since he rented the property for several years and it was clear that it was for use by the specific business in which he was engaged, it is therefore his acquisition and his right to remain for the entire rental term, 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 of this [or the regulations changed

A property rented for many years, as is common with business and commercial properties, which are rented for long periods both because of customers’ habits and because this creates goodwill for the business; and 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 a nonconforming use [from the perspective of the planning authorities and the local authority—the municipality—turning a residential apartment into a business is an action that requires obtaining a permit for nonconforming use under the Planning and Building Law; without submitting an application for nonconforming use, it is impossible to operate the business or office in the private property. Over the years many amendments have been added to the sections of the law that refer specifically to the type of occupation and the various restrictions concerning the property’s designated use, and every municipality has its own regulations as to what is considered nonconforming use]. The municipality approached the owner of the property 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, but the tenant argues that since he rented the property for several years and it was clear that it was for use by the specific business in which he was engaged, it is therefore his acquisition and his right to remain for the entire rental term, 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 of this [or the regulations  in the municipality changed], and therefore he agreed to rent out the property for operating a business, and now that enforcement has been renewed, he argues that on this understanding he did not agree to rent it out, and therefore he 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 is stated: it is obvious, “נפל לה ביתא” — “his house fell” [that is, the landlord’s house collapsed], he says to him: “לא עדיפת מינאי” — “you are no better than I” [and removes the tenant from the house he rented].

Rashi and Tosafot disagree regarding the explanation of the sugya. The view of Rashi (s.v. “לא”) is that during the rental term the landlord may not remove the tenant even if his own house collapsed, 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 no rental term was fixed, and with respect to the notice period that a landlord is obligated to give a tenant—thirty days {as explained at length in the article “The Obligation of Advance Notice of the End of a House Rental Period”} before he is about to remove him.

And in Tosafot (there, 102b, s.v. “בחזקת”) it is explained regarding a tenant who claims “I paid” during the rental term, 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, when he leaves the concern of being nonviable. Tosafot ask according to the view of Abaye (Bava Batra 5b), that a borrower is believed with the claim “I paid” during the time. And they answer, in these words: “Therefore he is presumed not to have been redeemed, because he 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 says (Bekhorot 49a); and a tenant too fears paying the rent in advance, lest the house fall, or lest the landlord’s own house fall and he remove him, saying to him: ‘you are no better than I,’ as we said above (101b).”

It is evident from the words of Tosafot that even during the rental term the landlord can say to the tenant, “you are no better than I,” and can remove him if the landlord’s house fell. This is also explicit in the Mordechai (remez 382–383), and so ruled the Maharshal (siman 38).

The view of the Rosh and the Mordechai

The view of the Rosh (Bava Metzia, ch. 8, siman 24) is like the view of Rashi, and so it is ruled in the Shulchan Aruch (siman 312, se’if 1): one who rents a house, courtyard, bathhouse, or shop to his fellow for a fixed period cannot retract and remove him during his term, even if the landlord’s house fell and he has no place to live. It appears practically that since the Shulchan Aruch rules like the view of Rashi and the Rosh, and the view of the Mordechai and Tosafot was not brought in the nosei kelim, the landlord therefore cannot claim “kim li” like the view of Tosafot and the Mordechai.

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

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

Despite what was written above, it is possible to say that the landlord can cancel the rental with the claim of an umdena demuchach—an evident assessment—that he did not rent it to him on the understanding that the tenant would damage him through the rental itself, for the claim of ones is due to the rented property and not something external, such as the house falling. Indeed, in the Maharshal (Responsa, siman 38), he discusses the above dispute among the Rishonim and explains that they disagree whether we compare rental to this sale: that which is ruled in Shulchan Aruch, and such is the view of Rashi and the Rosh, is that just as a sale is not canceled because of matters that arise later, so too a rental is not canceled because of matters that arise. But the view of Tosafot and the Mordechai, who disagree and hold that rental is not like a sale, is that a sale is canceled only by an evident assessment “in his heart and in the heart of every person,” whereas a rental is canceled by any assessment. But the reason for the distinction between sale and rental is not explained in his words.

The question of Tosafot: every sale that becomes spoiled should be canceled because of an assessment

Tosafot (Bava Kamma 110b, s.v. “דאדעתא”) ask on the words of the Gemara, which holds according to Rabbi Elazar ben Azaryah that if she was widowed after betrothal she does not collect the additional portion of her ketubah, but only one maneh and two hundred, because he wrote it for her only on condition that he marry her. Tosafot ask: every person who buys something from his fellow and it becomes spoiled should be able to cancel the sale, for he did not buy it on this understanding. And similarly they ask (Ketubot 47b, s.v. “שלא”): every person who takes a cow from his fellow and it becomes tereifah or dies—we are witnesses that he did not take it on that condition. Tosafot answer that we are witnesses that he wished to enter into that doubt; that is, Tosafot held that one who buys a cow from his fellow might have bought even in a situation where he could suffer an interruption/loss and the animal become tereifah. But below Tosafot wrote another answer, in these words: “It is not comparable to one who buys an object and an accident befalls it, where we do not say that he did not buy it on this understanding and cancel the sale, because it does not depend on the buyer’s intent alone, for there is also the intent of the transferor, who would not have transferred it to him according to his intent unless he specified it.”

It is clear from his words that if the purchaser had specified an explicit condition beforehand, certainly the seller too would not have agreed to sell to him in such a way that the responsibility would be upon him if an ones befell the object; and certainly such an assessment does not create a condition in a sale. According to this, one must explain the sugya in Kiddushin that it was clear to the buyer that the sale depended on this matter, for the seller stated it explicitly, and it is considered that he stipulated; and likewise in a very clear matter it is also as if he had stated his words explicitly.

However, in a matter where it is uncertain whether an ones will occur in the sale, as long as he did not stipulate, it is not considered a condition in the sale, for perhaps the seller’s intent was that the buyer takes the item also with the understanding that it may suffer an ones. And 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 accepted 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 to understanding Tosafot’s answer, but due to limited space we will write the general principle: we do not follow an assessment in a matter that depends on two parties. The Noda BiYehudah (Mahadura Kama, Yoreh De’ah, siman 69) innovates that all that Tosafot hold—that we do not follow an assessment in a matter dependent on two parties—is only regarding an acquisition that has already been made, such as one who sold a cow and it became tereifah. But to cancel an obligation, we follow an assessment even though it depends on the intent of both, such as canceling a shidduch where the betrothed woman’s sister converted out, or being exempt from the obligation of the dowry when his wife died. That is, it is clear from his words that one must distinguish between an acquisition that has already been made and completed, which is not canceled because of an assessment, and an acquisition that has not yet been made, but one merely obligated himself to make it; in such a case, the law is that it is canceled by any assessment.

It is evident from his words that there are three distinctions in the matter. A matter that is an assessment that he does not wish to enter into that uncertainty at all, even if it depends on both of them—that is, it is something that obligates the parties, whether by obligation or sale—in this, we follow the assessment of one in order to cancel an act that has already been done, such as a sale. And in a matter where there is reason to say that he would have entered himself into the uncertainty, even though there is also an assessment that if he had known with certainty that such a thing would occur he would not have done it, and if the matter depends on the intent of both, one cannot cancel it, like one who sold a cow and it was found to be tereifah and the like. But where the matter depends on the intent of one, such as one who undertakes to give of his own accord, in that case we follow an assessment.

And according to the second distinction of the Noda BiYehudah, it is clear that a matter regarding which there is reason to say that he would have entered himself into this uncertainty should not be canceled. According to this, the case of the landlord’s house falling falls within this distinction: the rental is not canceled on that account. 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 obligated themselves to one another—this one to rent and this one to lease—that means they entered themselves into the uncertainty and relied on the assumption that nothing would happen. In this, the law is that one cannot cancel it, for the landlord also would not want the tenant to cancel in a case where he would have losses.

The view of the Rema regarding a landlord when it became known that the tenant has a contagious illness

The Rema (Responsa, siman 20, cited in the Shach, siman 312, se’if katan 2, and in Netivot, Biurim, se’if katan 1) discusses a case of a tenant who became ill with a contagious disease, and the landlord argues that he did not rent on this understanding, because he fears contracting the disease. He elaborates there on the principle that after the kinyan of rental takes effect, the claim of ones is ineffective; and this law is a kal vachomer from the case where the landlord’s house fell, in which he cannot remove the tenant during the rental term, and all the more so with illness.

It is evident 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 a great ones—nevertheless the law is that the ones does not cancel the rental, since the kinyan was completed.

And in Netivot (there, Biurim, se’if katan 3) he wrote that even where there is loss of the rental, such as where the house became damaged, he cannot remove the tenant. However, he brings from the Mordechai that in a place where the landlord has a great loss and also has no dwelling house forever, in such a case the landlord can remove him; but this too requires examination—what is his source for this?

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

Therefore he concludes there that if the cause existed at the time he rented it out, it is certainly a strong assessment, and this is considered a mistaken rental, which even in a sale would be canceled where there was such a disclosure of intent. But if the cause arose afterward, the law is that he cannot remove him.

The laws that emerge

Seemingly, according to what has been written, this is a dispute among the poskim as to whether, in such a case where there is an ones after the beginning of the rental, he can cancel the rental. There is much to elaborate and discuss whether the question in this article is similar to those sugyot, for there is reason to distinguish: only where the house fell and with a contagious illness is it an ones affecting the body of the house, whereas in the present case it is an ones due to the rented property. And also whether this is considered a cause that arose afterward, for in this place there had never been municipal enforcement regarding matters of nonconforming use; or since it is a law that exists and only in practice there had been no enforcement, they should have been concerned about it. Sometimes, however, the regulations of nonconforming use are changed after the rental has taken effect, or the type of business changes. Therefore, in order to rule practically, discretion is necessary after hearing all the details of the matter from the parties.

Practical recommendation

In order to avoid such cases of ones, which can cause disputes between landlord and tenant, it is therefore recommended to agree upon and write everything explicitly in the contract: in cases of ones or lack of consent by the authorities to operate 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 from the parties. Therefore, it is recommended to consult with an expert dayan before drafting the contract.

From “Torat HaMishpat”