Detailed Explanation
Foreclosure and Expulsion invokes the following laws.
Background:
- A landlord may generally not breach a lease contract and evict the tenant during the defined duration of the lease [Choshen Mishpat 312:1]. (See below for possible exception.)
- Once the defined-time lease terminates, the landlord can legally expect the tenant to vacate the premises, {regardless of whether the tenant can find alternative housing, as the tenant had ample time to prepare for the eventual need to find alternative living quarters} [Choshen Mishpat 312: 8].
- If the landlord sells the rental apartment during the interim of the lease, the buyer must respect the terms of the contract originally signed between the seller and the present tenant [Choshen Mishpat 312: 12].
- If the landlord destroys or sells the rental apartment to a scofflaw who will not respect the terms of the seller's contract with the present tenant, the seller must provide the tenant with an alternative similar living quarters [Choshen Mishpat 312: 17].
Due Consideration for the Tenant
In order to avail the tenant reasonable time to attempt to find alternative housing, when a tenant lives in an apartment without a formal lease, (i.e. there is no defined termination date) the landlord must generally notify the tenant with ample time before wishing to evict him/her from the home.
As such, the Talmud explains that during the summer months when it is customary for people to relocate, whereby creating a market of vacant apartments, the landlord need not inform the tenant more than a month before wishing to terminate the relationship. A month's time during a season where apartments are available is deemed availing sufficient time.
However, the landlord may not evict the tenant in the midst of a season when alternative housing is presumably difficult to find. As such, the Talmud generally prohibits evicting a tenant in the middle of the rainy season when people do not move, and vacant apartments are difficult to obtain - even if the landlord gives the tenant thirty days warning. By warning the tenant thirty days before wishing to evict him/her during the rainy season, the landlord still failed to provide the tenant with a fair opportunity to seek alternative places to live.
Instead, a landlord who wishes to terminate the undefined lease term during the rainy season must avail the tenant the opportunity to look for new alternatives for one month before the onset of the rainy season [Choshen Mishpat 312: 5].
Due Consideration for the Landlord
Undefined Contract: Consideration 1
Just as the landlord must display due consideration to a tenant dwelling with an undefined contract term; the tenant is expected to display due consideration to the landlord when appropriate.
Thus, the tenant must give the landlord thirty days notice before wishing to leave in a season when new tenants are easy to find. If the tenant wishes to terminate the stay in the middle of a season when alternative tenants are difficult to find, the tenant must notify the landlord of his/her intentions thirty days before the onset of the difficult season [Choshen Mishpat 312: 7].
Undefined Contract: Consideration 2
If the landlord's own home collapses, whereby leaving the landlord homeless; were he/she not to use the rental apartment for his/her personal use; while the landlord may not evict a tenant who holds a time-defined lease in the middle of the rental term - he/she may evict a tenant who holds an undefined lease without forewarning in order to prevent him/herself from becoming homeless [Choshen Mishpat 312: 11] .
Does a situation exist which could conceivably permit a landlord to terminate a time-defined contract mid-term?
Rema maintains that while it is true that once a landlord loses his/her home, he/she may not evict a tenant who is protected by a time-defined lease; there is one example of a situation where the landlord can evict the tenant even in the midst of a time-defined contract.
If the landlord is about to lose his own residence i.e. due to a pending foreclosure, and could prevent such a devastating phenomenon from occurring through one option i.e. selling the rental apartment to a buyer who will not respect the rental agreement, he/she may do so to prevent himself/herself from losing his/her home [Rema 312: 1, see Aruch Hashulchan 312: 3 for rationalization and qualification of Rema's ruling].
Nesivos disagrees and maintains that the landlord must uphold the contract even at the expense of foreclosing on his/her own home [Nesivos 312: 1].
Practically, in light of the two aforementioned views, we would prohibit the landlord from evicting the tenant to protect him/herself from suffering a foreclosure on his/her own residence; but if the landlord did do so, we would not be able to compel him/her to bring the evicted tenant back in.
A tenant continues living and paying the original rental fee after the written time-defined lease terminates without having signed a new lease.
Do we view the subsequent months henceforth as though the tenant is living without a time-defined lease or do the terms of the original lease automatically renew themselves?
Aruch Hashulchan generally views such a phenomenon as though there is no time-defined lease. As such, the landlord may evict the tenant in the middle of the subsequent term provided that he/she gives the tenant thirty days warning during a season when vacant apartments are available and thirty days prior to the season when vacancies are difficult to find [Aruch Hashulchan 312: 24, see ibid 23 for situations when Aruch Hashulchan views the subsequent undefined term as though there was an automatic renewal of the contract and as such would prohibit the landlord from evicting the tenant during the second interim.]
Chochmas Shlomo however, maintains that if the landlord permitted the tenant to remain in the apartment after the termination of the time-defined lease without conferring with him/her, the contract automatically renews itself in accordance for the same duration of time. As such, if the initial contract was for a year; by allowing the tenant to remain after the culmination of the first year without conferring with him/her; the landlord forfeits his/her right to evict the tenant until the culmination of the second year.
Application:
Goldstein: While Goldstein's landlord was left homeless, evicting the Goldstein's would not have prevented the colossal loss of their home in Rafiach-Yam. Goldstein's landlord's home already fell. Thus, Goldstein's landlord cannot use the " tragedy card" to evict the Goldstein's before their time was up.
The question is simply when was their time up? Chochmas Shlomo views them as though they were locked in until the end of the third subsequent year, while Aruch Hashulchan views them as though they were under an undefined-time contract. Though they could be evicted before the end of the year, the landlord must give them ample warning time i.e. a month during a season where apartments are readily available or a month before the commencement of a season when apartments are difficult to find.
Goldstein was warned three weeks before the eviction date that he had to vacate the apartment; an insufficient amount of time on all accounts.
Unless local custom permits a shorter warning time, Goldstein's landlord may not evict them on January 15th.
Steinberg: Steinberg maintained a time-defined lease. Steinberg's landlord was faced with a pending foreclosure and only preventative recourse was to sell his Jerusalem rental apartment to the first buyer whether or not the buyer would respect the standing rental contract with Steinberg. Rema would permit Steinberg's landlord to go through with the deal and leave Steinberg homeless suddenly, while Nesivos would prohibit him from doing so.
As such we would not allow Steinberg's landlord to abrogate their rental agreement with Steinberg in order to protect his own foreclosure. However, if he carried through with the deal Steinberg would not be able to force himself back into the apartment
