My tenant, who had signed a two year lease, informed me after half a year that he wished to leave. I looked around and found a tenant who agreed to pay higher rent than the first tenant and signed a contract with him. When the first tenant found out that the second tenant was going to pay more, he said that he is willing to remain responsible for the apartment and he was entitled to the extra rent since the apartment was still under lease to him and he was entitled to sublet the apartment. However there is no clause in the contract that discusses subletting the apartment. Can my tenant force me to accede to his demand after he already expressed his desire to vacate?
Since the basis for your tenant’s claim is that he has the right to sublet the apartment, we should first consider this issue in a general sense.
The issue of whether a tenant has the right to sublet an apartment is never discussed directly in the Gemara, and there are three opinions among the Rishonim.
The case that is discussed is rental of movable objects, where the Gemara (Gittin 28A) notes that the Mishna rules that a renter does not have the right to sublet.
The Rambam (Sechirus 5, 5) derives from a ruling of the Gemara concerning boat rental that a tenant is allowed to sublet a house since, in contrast with movable goods that can be stolen and hidden, the owner of a house need not fear that the new tenant will steal the rental. The Rambam however, says that the size of the new tenant’s family may not be greater than the size of the first family, since the larger the family the more likely that there will be damage. (He specifically mentions that if there were four people in the first family the tenant may not rent to a family of five.)
The Rambam mentions that there is an opinion that a tenant may never sublet, but he disagrees. The Ra’avad in his annotations writes that he agrees with the opinion that a tenant may not sublet since there are tenants who destroy the property. R. Akiva Eiger in his annotations writes that the Rambam was alluding to the Ba’al Ho’itur. The Magid Mishne explains that this opinion differentiates between a boat (which the Gemara permitted) and a house because in the case of the boat the owner was present with the new renters whereas in a house he is not.
The third opinion is the Maharam of Rottenberg who agrees with the Rambam that a tenant may sublet but is more lenient than the Ramabam in that he permits renting even to a larger family. However, since the Rashbo agrees with the Rambam, the SA (CM 316) rules like the Rambam and does not even cite a dissenting opinion.
Thus, whether your tenant had the right to rent to the new tenant depends on two factors. If the apartment is furnished, the tenant was not permitted to sublet without your permission since the rental includes movable objects. Furthermore, even if the apartment is unfurnished, if the second tenant has a larger family the tenant would not have the right to sublet to him.
If your tenant did not have the right to sublet, if he nonetheless did sublet for a larger amount the Ramo (CM 363, 10) rules that you are entitled to the additional rent. Only if your tenant did have the right to sublet and he was the one who sublet is he entitled to the additional rent.
The rationale (Nimukei Yosef as explained by the Ketsos 363, 8) is based on the Gemara’s (BM 35B) ruling that one may not earn money from someone else’s possessions. Therefore, if the tenant does not have the right to sublet he is usurping your rights by renting out your property. Since he is not entitled to earn money from your property you are entitled to the additional amount. However, if he has the right to sublet and he rented out the property, he is entitled to the additional amount since he owns the right to sublet your property by virtue of his paying rent for your property. Thus he is profiting from something that he owns.
However, in your case the tenant did not find the new tenant. You did. Therefore, there we have to consider whether this difference is significant.
In the Rambam’s ruling that one may sublet, he adds that in his opinion if the owner is aware that the tenant wants to vacate and sublet, the owner has the right to demand that the tenant return the property to him and not sublet. He gives as his source the pasuk in Mishlei (3, 27), “Do not withhold benefit from its owner.” Thus, his reason is that if a tenant wants to use the property, he is entitled to do so. But if he does not want it, the owner may demand its return so that he can use it. Not returning it is considered midas Sedom (explanation of Maharshdam) .
- Akiva Eiger (CM 316, 1) writes that even if the owner only wants the property returned in order to rent to someone else, he has the right to force its return. Thus, you can force the tenant to return the apartment to you. When you found a new tenant who is willing to pay more and you rented to him, you effectively terminated the first rental at that time, which you had the right to do. Since the first tenant was no longer a tenant, he has no claim on anything you earn from renting out your apartment.
The fact that you rented the apartment yourself to the second tenant is important. The Radvaz (1, 139) and Maharshdam (CM 295) both rule that if a tenant has the right to sublet and he found someone to sublet the apartment for a higher price, the owner may no longer demand the apartment’s return even if he wishes to use the apartment himself. They base their ruling on the expression used by the Rambam in recording this halacha. The Rambam writes: “Why do you trouble yourself to rent my house to others? Simply vacate and you will be free from paying rent.” They deduce that only if the tenant no longer has any reason to hold on to the property the Rambam rules that the owner can force the return of his property. However, if the tenant found someone to rent the property and he can earn money from the rental, the tenant can refuse to return the apartment, because his holding on to the apartment is not a manifestation of midas Sedom but stems from a desire to earn money. Therefore, it is important that you and not your tenant found the second tenant.
In conclusion: If your apartment is furnished or the size of the family who rented is larger than the first tenant’s family, even if the first renter found the tenant, the first tenant has no claim to the extra amount the second tenant will pay since he is not entitled to rent out the apartment in those circumstances. Even if the apartment is unfurnished and the size of the second tenant’s family is not larger, since in your case you were the one who rented to the second tenant you may keep the additional rent.
We should note that our discussion applies to a case in which subletting was not discussed in the agreement between tenant and landlord. If there were provisions in the contract for subletting, the ruling has to take those provisions into account.