Question
I rented an apartment in a centrally located neighborhood in Yerushalaim for three consecutive years at a price of eighteen thousand shekels per Hebrew calendar month. My lease ended on Rosh Chodesh Sivan. After my lease ended, I kept paying eighteen thousand shekels each month as I had done during the course of the rental period. On Rosh Chodesh Ellul, when I wanted to pay rent, the landlord informed me that we can no longer continue so I should please vacate. I replied that I have a family and cannot just move out. He agreed to allow me to remain until Rosh Chodesh Cheshvan but claimed that since he can rent for sixty thousand shekels for Tishrei, I must pay him that amount for Tishrei. Can he force me to pay this amount for Tishrei?
Answer
The first issue that requires consideration is your status following the conclusion of your contract.
The Gemara (BM 101B) implies and SA (312, 8) rules explicitly that when one rents for a period of time his rights end upon the termination of the rental period and neither party is required to give notice prior to the conclusion of the rental period of his intention to conclude their relationship. Therefore, if your landlord had told you on Rosh Chodesh Sivan that you must vacate, he would have been within his rights and you would have needed to vacate, according to the halacha. However, he did not tell you and you continued living for another two months. We must consider whether your continued living in the rental granted you any rights to continue further.
This is the subject of a dispute. The Meiri writes in his commentary (BM 101B) and this is the ruling of the Radvaz (6, 2160) and was the first impression of the Mahari ben Lev (4, 28) that by continuing to live in the rental you did not gain any rights. Moreover, you were just a squatter and really were not necessarily obligated to pay the amount that you actually paid during the rental period. The amount that you really had to pay was the least amount that people pay for such apartments in your neighborhood, which may be less than the amount you paid previously. According to this approach, according to the strict halachah, your landlord could evict you on Rosh Chodesh Ellul and you would have had to vacate the property.
The proof of the Radvaz and the Mahari ben Lev is from a responsum of the Rosh (1, 7) which is ruled without a dispute by the SA (312, 14). The question posed to the Rosh concerned A who rented from B for a year but continued living for another month or two and then informed B that he was leaving. B refused to allow him to leave, arguing that in the town where the rental was situated people rented houses only one time during the year. Thus, if A vacated when he wished, B would lose an entire year's rent since the rental would remain vacant for the duration of the year.
The Rosh ruled in favor of the landlord. He based his ruling on the section of the Gemara (BM 101B) that deals with a person who did not rent for a period of time but had an agreement with the owner to pay a certain amount each month. The Gemara says that normally one needs to provide only thirty days' notice. But during the winter, since people do not move during the winter, neither party can terminate the agreement.
The Rosh notes that in the case of the Gemara the rental was not for a fixed period of time whereas in his case it was and as we mentioned when the rental is for a fixed period of time either party has the right to terminate the agreement on the date the rental period ends. He argues that nevertheless, the rationale of the Gemara also applies in his case since the rationale is that one may not terminate a rental at a time when the other party will suffer a loss. Therefore, the Rosh accepted the owner's argument and did not allow the renter to abruptly terminate the rental. He wrote that the status of this renter is like one who did not rent for a time period but rather like one whose agreement only covered the amount that the renter needed to pay for each time period.
The Radvaz and Mahari argue that one can deduce from the Rosh that only in the special situation where there is only one time that people rent, does the Rosh rule that neither party can abruptly terminate the rental agreement, because of the loss. However, in the absence of such a particular time, either party is entitled to terminate the agreement whenever he desires, even if it is not the date the rental period ends. Their understanding is that the Rosh maintains that the status of the rental remains a rental for a specific period of time but is subject to the condition that neither party will suffer a loss due to the abrupt conclusion of the rental.
On the other hand, the Oruch Hashulchan deduces from the Rosh that when one remains in a rental past the end of the rental period, he always has the status of one who is renting for a certain price without any time frame. In this case, the halacha (SA 312, 5) is that the party who wishes to terminate the agreement has to give notice thirty days prior to the time he wishes to conclude the rental. The Aruch Hashulchan's approach is supported by earlier rulings of the Maharshdam (CM 296) and Mishnas Rabbi Eliezer (1, 47).
There is a third approach of the Shach (312, 10 and 333, 44), Taz (333, 8) and that is the way the Gro (312, 23) understood the Rosh's ruling. According to this approach, when one remains in a property after the rental period, the agreement is automatically renewed for an additional period like the first. If one follows this approach, since you occupied the property for two additional months, you renewed your original agreement and you are entitled to remain for the entire year at the same price as earlier.
Finally, there is secular law that rules that when one lives in a property with permission but without a valid current contract, the party who wishes to terminate the rental must first give notice to the other party. The termination goes into effect at the conclusion of the first period that began subsequent to the serving of the notice. Thus, in your case where you paid monthly, secular law allows your landlord to terminate the rental agreement on Rosh Hashana.
Secular law seems irrelevant in this case since the halachic standing of secular law is that of a custom and only customs that are well-known (See Shach (42, 36) in the name of the Rivosh.) have the status of the halacha. Since this secular law is not well-known by the common man it does not have bearing on the halacha.
Thus, we have determined that there are three positions concerning your legal status after Rosh Chodesh Ellul when your landlord expressed his desire for you to immediately vacate his property. According to the Radvaz, you had no contract: not for a period of time nor for a rate per month. However, just like the Rosh did not permit the renter to end the rental if it will cause an unusual loss to the owner, so too it seems that your landlord can not terminate your relationship in a manner that will cause you an unusual loss.
According to the Oruch Hashulchan you had the status of one who was renting on a price per basis and had the right to live in the apartment until Rosh Hashana in any case, since that is the grace period that is always granted to one who rents without a term but on a per price basis. Again, based on the Rosh, if concluding on Rosh Hashana will cause you an unusual loss, you can remain until this situation ends.
Finally, according to the Shach, Taz and Gro you had the status of one who rented for a year starting with Sivan at the same price as previously.
In the next section we will BH, based on this section, deal with your question.
