To Have Or To Hold
‘Renting Is Not Owning’
(Avodah Zara 15a)
A person who had lived in a rental apartment for a number of years managed to find a home a month before the expiration of his lease. He informed the landlord that not only was he moving but he forwent (mechilah) his right to reside there in the remaining month as well. Two weeks later his daughter married and, by a quirk of fate, the couple suddenly had nowhere to live. He remembered his old apartment and asked his old landlord to allow the couple to live there. The landlord responded in the negative claiming that he, the tenant, had already relinquished all his rights to it. Is he right? This question concerns the very core of acquisition by rental.
Two Types Of Property Possession
There are two types of possession. The first is ownership of property, sometimes including all the components of the property and sometimes including only one component, such as a person who buys a date-palm only for its fruit. The second is ownership of monetary rights such as debts, mortgages and the like, which also belong to a person and may be bequeathed.
The difference between ownership of property and monetary rights is expressed in the possibility to forgo one’s rights (mechilah). A person who wants to relinquish ownership of certain property cannot do so with mechilah, whereas a person wishing to forgo a debt, for example, can.
Let us determine the nature of rental. Does the tenant become an owner of property as regards to its use, like a person who buys a tree for its fruit, or is he only renting the property for the “right” to use it without any ownership thereof? If the tenant only has rights to use the house, his rights dissolve as soon as he informs the landlord that he is foregoing his remaining rights.
However, if a tenant acquires ownership of the property for the duration of his lease, then his mechilah is not effective to relinquish ownership, just as a person cannot proclaim mechilah regarding ownership of his home.
In the opinion of many rishonim, this essential doubt forms the basis of our Gemara’s discussion whether tenancy is an acquisition of property ownership for the duration of the tenancy or merely a right of usage for a duration of time. In other words, the question is whether the renter acquires the property for its use or only gets the right to use it. The Gemara concludes a tenant only acquires the right to use the property but does not own it (Kehillos Yaakov 9, referring to Tosafos, Bava Basra 21b, s.v. Vehashta; Ran on Nedarim 46b; and see Kovetz He’aros 53).
However, Ramban (in Kuntres Acharon on Kesubos) and Tosfos Rabeinu Elchanan (on our sugya) believe that according to all opinions, a tenant does acquire ownership of property for its use; the Gemara is merely discussing whether, despite that ownership, the name of the original owner remains on the property (Kehillos Yaakov, ibid.). In other words, the question is whether a tenant acquires property to such an extent that it is not regarded as being the owner’s.
A Tenant Who Pays In Advance Becomes An Owner
Rabbi Elchanan Wasserman writes that according to the Yerushalmi and some rishonim, even if a regular rental only procures rights, a tenant can acquire property for its use if he pays rent before using the property. Since payment was collected in advance for use of the property, we must assume that the landlord and the tenant agreed that the latter acquires the property for its use. The assumption is that the tenant would not pay in advance just for future use (Kovetz He’aros, ibid., and see Kehillos Yaakov, Arachin §5).
A Rental Apartment Destroyed By An Earthquake
If we want to ascertain the halacha concerning this question, we can do so by means of the following case. A tenant paid in advance and during the rental period the apartment was destroyed by an earthquake. Must a landlord return payment for the time the apartment was unusable? The decision depends on the above difference of opinions.
If the tenant is considered the owner of the property regarding its use, he is like someone who bought an apartment which was destroyed a day after its purchase and he can demand nothing from the previous owner (see Kovetz He’aros, ibid., os 3). But if he is paying only for the use of the property, the owner must compensate him.
The Rema (Choshen Mishpat 312:17) rules that, in any case, the landlord must provide the tenant with an alternative dwelling (see ibid. in the Sema).
We see, then, that a tenant is never regarded as the owner, even if he pays in advance. (We emphasize that all the above is according to Kovetz He’aros and Kehilos Yaakov. However, there are other opinions on our sugya. See Chazon Ish, Bava KamMa 23, s.k. 10, and Avi Ezri, Hilchos Sechirus, ch. 6.)
Also, concerning the tenant’s mechilah, there is a broad discussion by the poskim: see Responsa Rivash 510 that the tenant’s mechilah has no effect without a physical act of acquisition. Some acharonim disagree (see a lengthy discussion in Pischei Choshen, Hilchos Sechirus, ch. 4, s.k. 7).