Two and a half years ago, when I began renting the apartment in which I live, I signed a one year contract with the owner. At the end of the first year, I said that I want to continue for another year and the owner said fine and we didn’t discuss anything else. I just continued paying the same rent. After the second year I didn’t say anything, assuming that since he didn’t say anything either that I can continue for a third year and I kept on paying the same rent. Now, in the middle of the third year, the landlord called me up and said that he heard that rental rates have increased and he is raising my rent by twenty percent. I replied that I don’t think he has the right to raise my rent since we are in the middle of the year and by accepting my rental payments until now he agreed to renew my lease for a third year. Is my argument correct?
Your question really is whether you have a contract to live in your apartment for the original price or not. You are arguing that since you and your landlord have conducted yourselves in accordance with your original contract and the original contract was for a year for a certain price, you have the right to pay that price for the remainder of the current year. The owner is, in effect, arguing that you don’t have a contract and even if you do, he is not bound by the original price and, therefore, he is free to raise your rent.
Your situation is not discussed in the Gemara explicitly. One situation that is discussed briefly (Kesubos 90A) and bears on your question is a father who married off his son who was a minor and he wrote a kesuba obligating his son to pay more than the minimum amount that one must pay when he divorces his wife. The Gemoro rules that if the son becomes bar mitzvah and remains married he is not obligated to pay more than the minimum amount that every married man must pay if he divorces his wife. We see in this case that where the couple continued living together without discussing the issue of the amount of his kesuba, the kesuba does not remain as it was under their original agreement.
The reason we consider becoming bar mitzvah as a new period is because when the son was a minor he was not legally married since a minor man cannot wed legally. But when he becomes bar mitzvah and continues living with his wife, the boy effectively marries his wife because he is now able to wed. By continuing to live with his wife after his bar mitzvah he marries her anew starting then, but since he did not renew his obligation to pay the larger amount he is no longer obligated to keep the terms of the original agreement.
The Rivash (res. 475) was asked to decide a dispute between a community that hired a chazzan for a year and freed him from paying community taxes. After the year the chazzan continued working. When he was asked to pay taxes then, he claimed that since under the original contract he was freed from paying taxes he retained that right. The community argued that the waiver was only for the life of the original contract, which was for one year, and therefore, now in the second year, he does not have a tax waiver. The Rivash ruled that since the community agreed that the chazzan should continue working for another year, even though there was no mention of continuing the tax waiver, the waiver applies to the next year as well and therefore, it is different from the Gemoro in Kesubos.
There is a major dispute how to interpret the differentiation that the Rivash makes between his situation and the Gemara’s case of the marriage of the underage boy. The Rama (CM 333, 8 and Darkei Moshe 333, 6) understands that the difference is that in the Rivash’s case the community agreed that the chazzan should work for another year, whereas in the case of the Gemara the marriage just continued without any discussion between husband and wife that they would continue. Even though in the Rivash’s case there was no mention that the waiver would continue, still, since they spoke that the chazzan would continue, that implied that they would continue with the same terms as previously. Thus, according to the Rama, if nothing at all is said about continuing, the terms of the original agreement do not apply.
The Shach disagrees with the Ramo’s interpretation. He understands that the Rivash’s differentiation was that in the case of the Gemara even though the father wrote a large kesuba for his daughter-in-law, nonetheless, it was not valid because a minor cannot wed. Since it was never valid in the first case, therefore, when they did wed it did not obligate the boy to its terms. However, in the case of the Rivash, since the original agreement with the chazzan was valid at the time it was made, it automatically continues even if nothing at all was said about the chazzan continuing to work for another year.
We should first note that even though the Taz (333, 8) agrees with the Shach, many later poskim (Machane Efraim (Sechirus 12), Divrei Mishpot (312, 2) and others) side with the Ramo.
Second, the Aruch Hashulchan (333, 30), while he agrees with the Shach in his dispute with the Ramo, places a major limitation on the Shach’s ruling. He claims that the Shach only argues on the Ramo concerning issues of the past but not issues concerning the future.
A similar situation to yours where the Aruch Hashulchan would maintain that there is a dispute between the Ramo and Shach is if you had lived in the apartment in the third year and had not paid your rent for that year, and then the landlord asked you to pay a higher price for those past months claiming that rates have risen and your old price is out-of-line. According to the Shach, he would not be able to force you to pay a higher price since you have a contract which says you only have to pay the original price. But according to the Ramo he could force you to pay the customary price since you were living in the apartment without a contract and the rule is that one who lives without a contract must pay the customary price. The Aruch Hashulchan would rule like the Shach that the owner could not force you to pay the higher price since that is an issue concerning the past.
However, in your situation that is not the issue, since the owner accepted your payments at the lower rate. Your dispute concerns the future only and the Aruch Hashulchan says that in this case even the Shach agrees that the owner can ask you to pay a higher rate.
The rationale of the Aruch Hashulchan is that according to all opinions the original contract does not continue as a yearly contract. Rather, according to the Aruch Hashulchan, according to both the Ramo and the Shach, it continues as a contract to pay a certain price per month (with all the other original conditions) without fixing a rental period. Therefore, the landlord can tell you to leave at the end of any month since he never agreed to allow you to stay for another year. Consequentially, he can tell you that if you wish to stay you have to pay a higher price and if not you must leave. (He proves this in 312, 24 from a responum of the Rosh.)
It should be noted that based on this approach (See CM 312, 5) if your landlord demands that you leave immediately he has to give you a month notice. However, (See CM 312, 9) during that month you would have to pay whatever is customary and not just your original rent. Since, in your situation the landlord is not asking you to vacate but asking for an increase up to the customary price, this issue is not germane and according to the Aruch Hashulchan even the Shach agrees that you have to pay what is customary.
We should note further that many other poskim (See Eimek Hamishpot 5, 20 for a lengthy discussion), based on the same source as the Aruch Hashulchan, disagree with the Aruch Hashulchan and maintain that your landlord could even ask you to vacate immediately and not give you a month notice since you have no contract at all. In your situation, this difference is irrelevant since even according to the Aruch Hashulchan he can ask for an immediate raise up to the customary price.
We should note two important points that further illustrate the delicate nature of these rules. The first point is that what we have written only applies to the third year since neither you nor your landlord said anything at all. In the second year, since you and the owner agreed that you would stay for a second year, even the Ramo agrees that by doing so you renewed your original contract for another year and the landlord would not have been able to raise your rent until the end of the year.
The second point is an interesting ruling of Rav Shlomo Kluger (Chochmas Shlomo-printed in the margin of CM 312) concerning a tenant who rented a house with a one–year contract in 1840. In 1859 there was a fire in town which burned down the landlord’s own house. Since the landlord needed a place to live he forced his tenant to vacate in the middle of the year. Rav Shlomo Kluger ruled that the landlord’s behavior was wrong. He does not disagree with anything we wrote previously. However, he rules that since for the last 18 years the tenant lived without a contract and yet the landlord and tenant behaved as if the original contract was still in place, therefore, it is has become their custom to act in this manner and they are bound by their custom.
Thus, had your question been asked after the fifth year (probably three years of such behavior suffices) the answer to your question would change and the landlord could not raise your rent.
In conclusion: Your landlord can raise your rent since you are not protected by any contract that prevents him from doing so. In the future, if you want protection at least get the landlord to agree to continue for another year. Of course, this would also obligate you to remain for the entire year unless you find a suitable replacement.