Question
For the last ten years I have been renting out an apartment without a contract. Three months ago we finally signed a rental agreement. The contract states that the agreement remains in effect as long as both parties wish to continue the rental. Last week, only three months after we signed, my tenant notified me that he wishes to vacate the property immediately. May he do so? Or, since we signed just three months ago, can I argue that people don’t make contracts for a three month rental? Furthermore, before I rent to another tenant I need to renovate the property. Does that affect us in any way?
Answer
The argument that people don’t make contracts for a three month rental is not valid for three reasons. First of all, people often make contracts even for very short-term rentals. Second, even if people don’t usually make contracts for short-term rentals, when someone isn’t certain whether it will be short-term or long it certainly is plausible that a person will make a contract. Therefore, the most that was implied is that the renter was in doubt whether the rental was long or short term. Third, even if there is such a custom, in your contract you stipulated that the contract is valid only for as long both parties wish to maintain the agreement. Whatever is stipulated in a contract overrides custom.
In spite of the fact that your tenant may terminate the contract whenever he desires, nevertheless he must give you some time to find a replacement. The Shulchan Aruch (312, 8) differentiates between two types of rental agreements. If one makes an agreement for a fixed period, as soon as the termination date is reached either side may terminate the agreement immediately without any prior notice. The rationale (Sema 312, 13) is that the agreement itself is notice, since the termination date was specified in the contract.
However, if the original agreement does not specify a date of termination, prior notice must be given before the agreement may be terminated. In your situation, there was no specific date of termination and therefore, the tenant cannot leave without notice.
The Gemara and Shulchan Aruch (312, 5-7) give various periods of time depending on how it easy it is to find a replacement. The idea of Chazal is that neither party may damage the other when discontinuing the contract. Since the amount of time is subject to local conditions, one should investigate how much notice is normally stipulated in rental agreements where the termination date is not specified. If there is no local custom, one should determine how much time it takes for a landlord to find a new tenant.
In order to answer your second question we must first clarify the status of your renter during the period of time in which he must continue the rental. The Shulchan Aruch (312, 7) rules that he must continue paying rent as before unless he finds a replacement. (Pischei Teshuvo (312, 4) brings a Sha’ar Mishpat who disagrees but the consensus is not like the Sha’ar Mishpat.) Thus, it is clear that during this time the rental continues as before.
You say that you need to renovate the property, which requires the property to be vacant. You cannot force the renter to pay rent while the property is undergoing renovation since the property is not usable by the renter. If you do renovations during the period of notice, you cannot require your tenant to pay rent for that time.
Furthermore, if you can renovate during this period you must do so, and you may not delay the renovation in order to continue receiving rent. The reason is that we have a concept (See Bava Basra 12B) known as “Kofin al middas Sedom”. “Middas Sedom” is to avoid doing, or to prevent someone else from doing, something which is beneficial to him while you are not harmed.
In this situation, if you renovate during the time the renter is required to pay rent, you will save him the rent money and you won’t be harmed-and probably will gain because you will be able to rent your renovated property for a higher price earlier than otherwise. Therefore, beis din will not honor your request to require your tenant to pay an extra month’s rent if you can renovate during that time, at no added expense.
