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
In part 1 we saw that there was a dispute whether your continued stay in the rental following Rosh Chodesh Ellul is because it is part of your rental agreement or because you are entitled to a grace period. Based on this we can now examine your landlord's claim that he is entitled to charge you holiday prices for the holiday period.
Obviously, according to those that maintain that your continued stay is because this period is covered by your original contract your landlord cannot raise the price for the holiday season.
However, according to the others there is an issue that must be studied.
The Gemara (BM 101B) discusses the issue of adjusting prices for the grace period that is granted to the party who was informed by the other party of his decision to terminate their relationship. The conclusion of the Gemara is that the landlord may not raise prices for this period since raising the price is equivalent to eviction, which he cannot do during the grace period. However, if prices in general rise, the landlord may raise prices in tandem since he need not suffer a loss as a result of the grace period that is granted to the renter.
Your situation is complicated because prices for annual rents did not rise in general but the holiday period is a time of unusual opportunity of which even people who do not rent out their apartments throughout the year sometimes avail themselves.
When the Gemara rules that if prices rise the landlord may raise prices, Rashi comments that the reason is because in that situation, the landlord's loss is clear. The meforshim discuss what Rashi meant to add by his cryptic remark.
One interpretation is given by the Ginas Verodim (CM 3, 41). He was asked about a situation in which prices did not rise in general but the owner of a particular house was offered a higher price by someone who wanted to rent his particular house. He understood that this situation does meet Rashi's criterion because it is clear that the owner will suffer a loss because he had a concrete offer to rent at a higher price.
The Yad Dovid and Ma'asei Rakom (BM 101B) disagree and say that on the contrary, the implication of Rashi is that the owner is not allowed to raise the price because, since prices did not rise in general, the owner's loss is not apparent to an outside observer since only this owner will suffer a loss since this was an individual offer.
In your situation where prices did not rise for annual rentals it is certainly not clear to an outside observer that your landlord will suffer a loss by not taking advantage of the unusual opportunity to rent on a short-term basis for the holiday season, since this house is not usually rented on a short-term basis and it will not in fact be vacant during the holiday season.
There are two additional reasons why your landlord cannot force you to pay a higher price.
A second reason the landlord cannot make you pay a higher amount is that there is no possibility that the landlord can evict you during Tishrei since either you can remain because your rental period did not end or you can remain because you are within the grace period. Thus, even if we say that in this situation if you are only entitled to stay because Tishrei falls inside the grace period the landlord can charge you holiday prices, practically you would not have to pay the holiday price because according to some poskim certainly the landlord cannot charge you the holiday price. Since the disputed issue is not whether the landlord can evict you but just how much you are required to pay for Tishrei, we apply the principle of hamotsei meichaveiro olov horayo-the burden of proof rests on the one who wishes to extract payment, namely the landlord.
A third reason the landlord cannot force you to pay a higher price is that even if the issue would have been whether the landlord can evict you, according to many poskim the landlord would not be able to evict you. The reason is that many major Rishonim (e.g., Rashbam, Ramban, Rosh and many others-See Mishna Lamelech Sechirus 7, 2 at length) maintain that where there is a dispute if a landlord can evict a tenant, the tenant cannot be evicted.
The basis for those who maintain that the tenant is the entrenched party is the Gemoro (BB 32B) that cites a dispute between Rabbo and Rav Yosef whether a tenant's claim that he bought a property from the former owner is believed or not and the Gemoro rules that the one who was living in the property and claimed he bought the property is believed. The Rashbam and Ri dispute why the one who is occupying the property is believed against the former owner. The position of the Rashbam is that the reason is that the one who occupies the property is the muchzak-the entrenched party.
The Tur and Ramo (CM 25, 2) cite the Rosh who seems to rule like the Rashbam and that is the understanding and ruling of the Nesevos (Klolei Tefeeso 22) whose rulings are generally considered authoritative.
The issue in the Gemara concerned the sale of a property and not a rental. The Knesses Hagedolo (227, 32) cites a major dispute amongst the early major Sefardi poskim concerning whether rentals are equivalent to sales on this issue and he himself maintains that they are. Many later poskim have taken up positions on this matter. Therefore, if there were a dispute, beis din would not evict a tenant. Since beis din would not force you to evacuate the property the owner would have no way to force you to pay the higher price. Therefore, this is a third reason why your landlord cannot force you to pay the holiday price.
In conclusion: Your landlord cannot raise the price for the holiday season to reflect the seasonal rise in prices for short-term rentals, for a number of reasons.
