Protected Tenancy — Key Money in Halacha, Part 2

As a continuation of the previous article, in which we briefly presented the background of the Tenant Protection Law, the main points of the law, and the definition of dina de-malchuta dina — “the law of the kingdom is law” — in this article we will briefly present the discussion of the great poskim regarding the validity of this law. The main issue arose with apartments that had been rented before this law was enacted, and during the rental period the Tenant Protection Law was enacted. When the landlord wished to evict the tenant, the tenant claimed that under the law he had the possibility of remaining under certain conditions. The poskim discussed whether this law, which in practice diminishes the right of the owner of the apartment — the landlord — obligates the owner. However, where the apartment was rented after the law had been enacted and it had become common practice to conduct matters accordingly, it follows that as long as it was not explicitly agreed and written that key money does not apply, the law is binding, since this is the custom of the country, and every rental follows the custom of the country.

The landlord’s right to vacate the rented property

When a person rents out an apartment or any other property, the Shulchan Aruch (Choshen Mishpat 312:8) rules that if it was rented for a fixed term, once the term ends he may evict the tenant immediately, even if the term ends in the middle of the rainy season. The Sma (ibid., s.k. 13) writes that the same applies to the tenant: he may leave immediately without notifying the landlord. The reason is that they knew the term would end, and they should have discussed this with each other or with others, so that they would know their place of residence from the end of the term onward. Therefore, when one rents out an apartment and writes explicitly that it is according to the key-money law, or even if one does not write this explicitly but at the time of the rental the law had already been enacted and applied to this rental as well, the halacha is that this is considered the custom of the country, which is binding, as long as the parties did not explicitly agree otherwise.

The position of the Gaon Rabbi Meir Arik regarding the halachic validity of a protected tenant in a rental where, at the beginning of the rental, the law had not yet been enacted

The great Torah authorities of the generation after the First World War already dealt with this issue, for the law existed in the United States and Europe, as well as during the British Mandate period, until an orderly law was enacted in Israel. Today this trend is gradually decreasing. {I wrote at length on this matter in issue 19}.

The first to address the matter was the Gaon Rabbi Meir Arik (Responsa Imrei Yosher, vol. 2, siman 152, section 2). He cites the questioner, who had rented out his apartment for a fixed period, and when the period ended the landlord wished to evict the tenant; according to dina de-malchuta, the landlord could not evict him [because of the Tenant Protection Law]. In truth, this enactment was made for the benefit of the residents of the country. However, from the words of the Shach (siman 73, s.k. 39) it appears that even this is effective only with regard to taxes, but not in other matters. Regarding land, it depends on the dispute among the Rishonim whether we say dina de-malchuta dina, and the landlord is considered the party in possession, as ruled in the Shulchan Aruch (Choshen Mishpat 312:16), that land stands in the possession of its owners.

He answered that what seemed obvious to him — that the landlord is considered the one in possession — is not clear. He cites there several poskim who disagreed on this. As a matter of practical halacha, the Netivot HaMishpat, in the rules of seizure (s.k. 10), states as the halacha that in a doubt of law the tenant is considered to be in possession. In our case this concerns land and an enactment for the benefit of all the people of the country, and according to most poskim dina de-malchuta dina. It is possible that even the Shach mentioned above agrees, since the lands are theirs, even though it does not concern taxes. He cites there several sources regarding the force of enactments of Chazal. Therefore, he rules that one may not evict the tenant in a key-money tenancy.

He cites the words of the Chatam Sofer (Responsa, Choshen Mishpat 44), that in such a case we find enactments in the Shas so that merchants’ livelihoods not be cut off; in this, according to all opinions, we say dina de-malchuta dina, like an enactment. So too in the present case, where it is known that the enactment is very important in our times so that people not be cast into the streets; therefore in our times we say dina de-malchuta dina, and the landlord cannot evict him.

However, it must be discussed that since apartments have become more expensive, perhaps in any event the landlord may raise the rent according to the present rise in apartment prices, as is explained (in siman 312) regarding the notice period. And although according to dina de-malchuta they made an enactment regarding this as well, nevertheless, since Chazal were not concerned for such a case, one might say that we do not take dina de-malchuta into account. Yet it appears that in any event it is impossible to evict the tenant, for in that respect dina de-malchuta dina; the doubt is only regarding increasing the rent. For according to those who maintain that dina de-malchuta dina, and especially with regard to lands, which are theirs, he certainly cannot raise the rent. And today, when in any event the tenant cannot be evicted from the house, but regarding raising the rent there is a doubt in the law whether dina de-malchuta dina, in this one may say that the tenant is in possession, since the doubt concerns only money.

It is clear from his words that he concluded that whether the tenant may remain in the apartment after the rental term ends, when he entered the apartment before the law began, is a dispute among the poskim and is a doubt of law. According to the Netivot in the rules of seizure, he holds that the tenant is considered in possession. Therefore he rules that since according to most poskim dina de-malchuta dina applies to land, and since the Netivot holds that the tenant is considered in possession in a case of doubt, the landlord cannot evict the tenant.

The position of the Chavatzelet HaSharon that if the tenant entered the apartment before the law was enacted, the landlord cannot be compelled to act according to the Tenant Protection Law

The Chavatzelet HaSharon (Choshen Mishpat 8) wrote that he stands by his position, and this law [- the Tenant Protection Law] does not have the status of dina de-malchuta dina. What the Rav of Tarna [the Gaon Rabbi Meir Arik] wrote was during wartime, which was truly a time of great pressure and hardship, and he needed to find merit for the tenants. But now reason dictates the opposite: this is a great injustice against homeowners, to whom the verse-like expression applies, “your ox has been slaughtered,” etc.; strangers control their property and they have no rescuer. Nor is this an improvement for tenants, except for old tenants; for every day new people are added who need to rent apartments, and for them the enactment is a detriment, because through it apartments become exceedingly expensive and it is impossible to find an apartment, which was not the case before the war. In particular, it is known to us that the main support for the law comes through certain free-thinking representatives who hold communist and socialist opinions and methods, to pressure the wealthy and take their money; all these methods are contrary to the view of the Torah. Heaven forbid to say that in this matter it should be considered a full law according to the law of our holy Torah. And although people have already acted this way, it is not the custom of the upright, but only because the hand of the beit din is not strong. Even G-d-fearing people are accustomed until today to compromise and not to base everything on the law. Therefore, I do not move from my opinion in this matter, end quote.

It is clear from his words that he holds the Tenant Protection Law is contrary to the view of the Torah. However, it should be noted that his position applies only to a tenant who entered to live in the apartment before the law was enacted, and while he was living in the apartment the law was enacted. But one who entered to live in the apartment after the law was enacted obviously must act according to the law by which people conduct themselves, for in rentals we follow the custom of the country.

The position of the Avnei Chefetz that this is a necessary enactment that became the binding custom of the country

In Avnei Chefetz (Responsa, siman 40, section 2, by HaGaon R. A. Levin — Av Beit Din of the holy community of Rzeszów) he wrote that the custom has already spread to give the law protecting tenants [- the Tenant Protection Law] force and authority even in Jewish law, because in truth this law is very necessary and essential for the proper functioning of the country [in their times]. Were it not for it, people would be cast like refuse upon the streets, and horrors would multiply, which could bring catastrophe upon the land and its inhabitants. I well remember that when the law came before the legislative assembly, the homeowners engaged in much propaganda to persuade me — for I was already then among the people’s delegates and a member of the legislative assembly — and the other Jewish delegates to vote against the law. We did not listen to them, because this law is a shield for the internal peace of the country and its inhabitants, and without it who knows how many casualties would have fallen, had every homeowner had the power to evict apartment tenants as he saw fit without any limitation, end quote.

The position of the Chazon Ish that a tenant who entered the apartment before the law was enacted and does not wish to leave because of the law is considered a robber

The Ateret Shlomo (siman 88, by the Gaon Rabbi Shlomo Karelitz) relates that he spoke with his uncle, the Chazon Ish, who answered him that one who entered an apartment without key money is forbidden to demand even a portion of what the new tenant pays, because the apartment belongs to the homeowner, and every perutah that he extracts from the homeowner from the money received for the apartment, or from the homeowner himself, is complete robbery .

Nevertheless, in practice the homeowner cannot compel the tenant to leave the apartment, etc. For at a time when it is difficult to obtain an apartment, the homeowner should not remove the tenant from his place of residence. Since during the British Mandate it was difficult to obtain an apartment without key money, and the prices were very high such that an ordinary person could not bear them, and since many people by the tens and hundreds would therefore be cast into the street, the landlord cannot evict him from the apartment. This is like the rainy season. However, even so, the landlord may demand from the tenant a higher rent than he has paid until now, according to what is paid in the market for such an apartment. This is only where the tenant lives in the apartment without a fixed term, or rented it without specification and pays month by month. But if he rented an apartment for one year and the landlord demands that he leave afterward, he must leave immediately after the year, as explained in the Shulchan Aruch (siman 312:8), that even in the rainy season he must leave, although it is difficult to obtain another apartment.

Until now we have spoken where the tenant entered before the law protecting tenants was established and without key money. However, where someone rented an apartment and paid key money, and afterward the homeowner demands that he leave the apartment when the rental term ends — that is, the rental was made after the law had come out — then seemingly the law is contrary to Torah law, by expropriating the property of the landlord. And when they force the landlord to leave the tenant in his apartment against his will, there is no dina de-malchuta dina here.

The opinion of the Gaon Chazon Ish is that since he rented the apartment when such a law existed, he therefore rented with this in mind. Since the tenant could compel according to the law, the landlord should have been concerned for this, and necessarily “he rented it out with this in mind, according to the law, with all its rights and all its obligations,” since he did not stipulate that the rental depends solely on his own discretion. According to this, the landlord cannot evict the tenant, even though he rented it to him for a certain period, if at the time of the rental he did not say that this was without tenant protection. Accordingly, he cannot demand higher rent from him after the rental period, except for what the law permits him to collect as rent, since the rental was made with this in mind. In such a case, even if the landlord did not tell him when the first rental ended that from then on he wanted higher rent than what he had paid until now, and even if several months passed without him saying anything to him, nevertheless he must pay according to what is fixed by law, since he rented it to him with this in mind. Even if the tenant did not pay him key money, he likewise cannot evict him from the apartment for this same reason: he rented it to him according to the prevailing practice, since he did not stipulate otherwise with him. And although it may be that there is no longer difficulty in obtaining an apartment as there was in the days of the Mandate, and the law of the rainy season does not apply, nevertheless he cannot evict the tenant, for he rented it to him with this in mind. [He discusses this further at length there, but this is not the place]

However, in Emek HaMishpat (vol. 5, siman 45, section 12), after citing the above responsum, he wrote that in practice the law has changed since then: only one who rented an apartment until 20/8/68 needed to specify explicitly that he was renting out the apartment without the tenant-protection laws; if he did not specify this explicitly, then tenant protection applied. But from that date onward, if key money was not paid, there are no rights of tenant protection.

In Orchot Rabbeinu (p. 286), it is brought that the Chazon Ish ruled that the state law of tenant protection is not to be taken into account, and the tenant must leave the apartment in accordance with the landlord’s demand; he cannot demand to act according to the law, and if he refuses to vacate, he is a complete robber.

Summary of the matter

The great Torah authorities of the generation after the First World War discussed this law. The main issue concerns apartments that were rented before this law was enacted, and during the rental period the Tenant Protection Law was enacted; when the landlord wished to evict the tenant, the tenant claimed that according to the law he had the right to remain.

The Gaon Rabbi Meir Arik held that by virtue of dina de-malchuta dina the law is binding even upon rentals that began before the law came into effect. The Chavatzelet HaSharon held that if the tenant entered the apartment before the law began, the landlord cannot be compelled to act according to the law. The Avnei Chefetz held that since this is a necessary enactment, it became the custom of the country and one must act accordingly. In the name of the Chazon Ish it is brought that since at the time of the rental the law had not yet been enacted, the halacha is that the tenant must leave the apartment in accordance with the landlord’s demand, and he cannot make a claim based on the law; if he refuses to vacate, he is considered a complete robber.

In the next article, with G-d’s help, we will present the remaining positions of the poskim regarding the law.

From “Torat HaMishpat”