The Greens lived in a rented house upstate, where the weather is temperate during the summer. However, they planned to be away for the entire summer visiting their family elsewhere.
“It’s a waste to pay rent for the summer,” Mrs. Green said to her husband. “Maybe someone from the city would be interested in subletting for the summer. It’s much more pleasant here than in the city.”
“We could consider that,” replied Mr. Green. “It’s a bit of a hassle arranging everything, but it certainly would help financially.”
“What about our landlord?” asked Mrs. Green. “Do we have to ask his permission? It is his house, after all.”
“What’s the difference to him?” replied Mr. Green. “We rented the house for the year. We could live here during the summer, so why can’t we have someone else live here in place of us? The landlord will get his rent regardless.”
“I know other families who had issues with this,” said Mrs. Green. “Some landlords allowed it, while others refused it outright. Maybe check the contract; see if it says anything.”
Mr. Green checked the contract. “Our contract doesn’t specify anything about subletting,” he said. “It doesn’t explicitly allow it, but doesn’t rule it out. I don’t see, though, how we can avoid telling the landlord about it.”
“I agree that we need to let him know,” said Mrs. Green. “However, the question is whether we have to ask his permission. Often, once you raise a question, you open yourself to refusal. If we can, I’d rather just arrange it, and then let him know that we sublet it.”
“I’m not sure if we need to ask his permission,” answered Mr. Green. He called Rabbi Dayan and asked, “Can we sublet our house for the summer without the landlord’s permission?”
“The Gemara (B.M. 29b) teaches that one who rents an item may not rent it to a third party,” replied Rabbi Dayan (C.M. and Sma 307:4).
“However, the Rambam (Hil. Sechirus 5:5) limits this to movable items, where the owner can claim that he does not want the item in another person’s hands. However, it does not apply to a house, which cannot be hidden away, and the owner can check that it is returned intact. Therefore, a person who rents a house for a set time is allowed to sublet, provided that the second renter does not have more family members than the original tenant and is a reasonable person (C.M. and Sma 316:1; Rema 342:1; Aruch HaShulchan 316:2).
“Most authorities understand that this is allowed even if the owner does not live in the premises, since he can still oversee the property (Taz 316:1).
“Rashba (Responsum 3:36) writes that it is permissible to sublet even to a larger family, if the tenant can show beis din that no additional damage is expected through this arrangement. Perhaps the Rambam would agree with this as well (Emek Hamishpat, Sechirus Batim 56:13).
“Furthermore, Kessef HaKodashim (316:3) suggests that when the common practice requires the tenant to return the house in its original condition, it is permissible to sublet to a larger family, since regardless, the tenant must ensure that the house is returned intact. This is questionable, though. In addition, most contracts nowadays do not require returning to the original condition when there is reasonable wear and tear.
“Nonetheless, some rule that if the house is furnished, the tenant cannot sublet it without the owner’s permission, since the tenant has no right to sublet the movable items in the property (Emek HaMishpat, Sechirus Batim 56:31).
“Of course,” concluded Rabbi Dayan, “all this is subject to the terms of the rental contract and minhag hamedinah, which are binding in issues of rental” (Pischei Choshen, Sechirus 4:8[22]).
Verdict: In the absence of a stipulation in the contract or minhag hamedinah indicating otherwise, a tenant can sublet to a similar-sized family even without the owner’s permission. However, if the house if furnished, some poskim do not allow it on account of the movable items.
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This article is intended for learning purposes and cannot be used for final halachic decision. There are also issues of dina d’malchusa to consider in actual cases.
