BS”D

 

Question

A year and three months ago I signed a lease to rent an apartment for one year. When the year ended, we didn’t discuss or sign anything and I continued living in the apartment and paid the same rent as in the first year. Last week the landlord informed me that his nephew needs an apartment and I must vacate the apartment in two months’ time. It causes me problems because my two year old daughter attends kindergarten and my wife works nearby so it would be very difficult for me to move out of the neighborhood. While it is true that there are other available apartments in the neighborhood, nonetheless it will be difficult for me because the prices are generally higher and I am living on a tight budget. Must I vacate in two months’ time or am I entitled to an entire year since we continued living in accordance with the terms of the contract and the original contract was for an entire year?

Answer

First, let us clarify the amount of time that one must grant to a renter before requiring him to vacate a rental. The Mishno (Bava Metsiyo 101B) gives guidelines based on the difficulty of finding an alternative property to rent. Thus, one cannot require the renter of a house to move during the winter whereas in the summer it suffices to give thirty days’ notice. The Gemara explains that the reason for the difference is that there was a shortage of apartments available for rent in the winter. The Mishna states that for stores one must grant an entire year since stores give credit to their customers and a year is required in order to ensure that all of the customers pay up their entire bill.

It is important to mention that all the rules apply to both the renter and the owner. Thus, just like the landlord must give thirty days’ notice to his tenant in the summer, so too the tenant must inform the landlord thirty days before he vacates.

The difficulty of applying these rules to your situation is that the Rishonim including the Rif (B.M. 59A) and the Rosh (B.M. 8, 24-25) cite the Yerushalmi that limits the applicability of the Mishna to a rental agreement that only stipulated the amount the renter was required to pay each month but did not stipulate the length of the rental period. If the contract stipulated the length of the rental period, the agreement automatically ends at the end of the rental period. The reason is because the contract itself serves as notice that at the end of the rental period the rental will cease. Thus, in your situation had you vacated the apartment at the end of the year the landlord could not force you to remain for another month because you had effectively informed him by means of the contract that you would vacate at the end of the year.

We now have to consider your situation, where you continued living after the rental period was up. This situation is discussed by the Rishonim beginning with Rav Hai Gaon (cited by the Ba’al Haitur) who rule that the fact that you continued living in the apartment after your lease ended does not constitute a renewal of the lease. As the Radvaz (Responsa 2060) argues: “Is the landlord required to evict his tenant immediately upon the end of the lease? While it is true that he had the right to evict the tenant, nonetheless, the landlord does not forfeit this right by failing to exercise this right immediately.”

Many poskim cite a response of the Rosh (1, 7) who dealt with the flip side of your question. In his situation, two months after the tenant’s lease ended the tenant informed the landlord that he wished to vacate. The landlord argued that the tenant’s request should not be honored because in the area where the rental was located there was just one time in the year when people rented apartments. Therefore, if the tenant would vacate immediately he would cause the landlord a loss of ten months’ rent since no one will rent in the interim. The Rosh sided with the landlord and explained that in this situation it was incumbent upon the tenant to have informed the landlord at the time the lease terminated that he only intended to continue for another two months. Since the tenant failed to do so he effectively renewed the lease by staying on after the lease ended.

The poskim derive from this response that, in general, living past the termination of a lease does not constitute renewal of the lease. Furthermore, one can derive that if there is a special situation that prevents the landlord from finding a new tenant the old lease continues.

There is a dispute how to view the relationship between the tenant and landlord after the lease expires. Many poskim, including the previously cited Radvaz, as well as the Mahari Ben Lev (4, 28), maintain that the tenant is living on a day-to-day basis. Thus, the Mahari Ben Lev writes that both the tenant and the landlord need not give any advance notice of their desire to terminate their relationship. The Aruch Hashulchan (312, 24) disagrees. He agrees that there is no rental period. However, he maintains that the rules which the Gemara gives for one who does not rent for a specific period but merely agrees how much the tenant must pay per period (e.g. a month or a year) apply. Thus, since the Gemara rules that in the summer one must give thirty days’ notice so too here one must give thirty days’ notice.

Rav Shlomo Kluger (Chochmas Shlomo in his notes in the margin of CM 312, 1) discusses a situation that occurred in his town, Brody. A tenant rented an apartment on 21 of Iyar 1840 for a year for a fixed yearly payment. Subsequently, for the next seventeen years, no contract was made between the landlord and his tenant. On Rosh Chodesh Iyar 1859 there was a fire which destroyed the landlord’s house. The landlord wanted to evict the tenant immediately since he had no alternative living facilities.

Rav Shlomo Kluger ruled that not only did the landlord have no right to evict his tenant immediately but he must allow him to remain until 21 Iyar 1860! He argued two points. First, since for the seventeen years following the first year the tenant continued living in the apartment and paid the same yearly rent without ever discussing the next year, it is as if they agreed each year to renew for another year. Therefore, until 21 Iyar 1859 the landlord certainly may not evict his tenant. He argued further that since the landlord did not give the tenant thirty days’ notice before his year was up it is as if he agreed to continue for another year. The Maharash Engel (4, 20) agrees with the first point but disagrees with the second.

Even though it might seem that these poskim disagree with the previous poskim that is not necessarily the case. The difference is that Rav Shlomo Kluger is discussing someone who has experience of many years where each year he continued for an entire rental period without discussing renewal. On the other hand, the earlier poskim were discussing someone who was in the first year after the contract expired. They had no track record of continuing the rental for an entire rental period without a contract.

Therefore, since you are only in the first year past the contract, the landlord can evict you at any time. As we mentioned, according to some he could ask you to leave tomorrow but according to the Aruch Hashulchan he must give you a month’s notice. Since he is giving you two months he is certainly within his rights. We should note that if you decide to leave after a month you may do so since you are also not bound by the previous contract.

 

 

 

 

 

 

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