NRR 236-238

ALL-ADULT APARTMENTS

QUESTION:

This question is based upon the fact that a young couple living in an “all-adult” apartment house had a baby. The landlord evicted them. The judge upheld the landlord on the ground that ruling against renting rights of parents who have children is not discriminatory under our law, as it would be if the landlord made a ruling against renting rights of people of a certain race or religion. (Rabbi Allen S. Mailer, Culver City, California.)

ANSWER:

THERE IS A great deal in Jewish law as to the relationship of landlord and tenant. Most of it, however, deals with the renting of agricultural land. Questions are discussed, for example, as to the different kind of tenant-farming, sharecropping, etc. As for the landlord-tenant relationship in cities, involving the renting of houses or parts of houses, this is discussed to a smaller extent in the law. Most of the law in this matter, beginning with the Talmud, finally is crystallized in the Shulchan Aruch, Choshen Mishpot 312 ff.

There the law is absolutely clear that once a lease has been signed, the landlord has no right at all to evict the tenant before the termination of the lease. Even if the landlord’s own house collapses and he has no place to live, he cannot argue that it was understood as a precondition: “If I lost my own home, I could evict you so that I can occupy the house which you have rented from me.” He cannot do so.

In fact, Moses Isserles (16th century), in his responsum # 19, shows that no such presumed but unspoken conditions can be used by the landlord to oust the tenant before the termination of the lease. In this responsum he deals with the following extreme case: The tenant was to occupy part of the house. The landlord lived in the other part of the house. The lease was signed; but before the tenant moved in, the wife of the tenant contracted yellow fever. The landlord, who lived in another part of the same house, claimed that it was presumed as an unspoken precondition that he surely would not have rented part of his house to a person whose sickness would be a danger to him and his family. Isserles said the landlord cannot use such an argument but must allow the tenant to move in, in spite of the yellow fever which his wife had contracted.

As far as I know, there is only one mention of the question of a family with children. It is as follows: If the tenant wishes to sublease his dwelling or part of it to another family, he may do so provided that the second family is not more numerous than his (Choshen Mishpot 316). The commentator Abraham of Bucacz (Kesef Ha-Kedoshin) explains this provision on the ground that a larger family would cause more damage than a smaller one. But, he adds, such subleasing to a larger family is forbidden only if the landlord is expected to make the repairs, but if the original renter is expected to make the repairs, then there seems to be no objection to him subletting to a larger family.

As a matter of principle in Jewish law, it would be unheard of for a landlord to make a condition, as is now occasionally made, that families with children will not be given a lease, and that families who have a lease and give birth to children while they are tenants cannot continue their lease. Having children is a positive mandate of Scripture. That is why a man is legally in duty, bound to marry. It is a principle in Jewish law that any condition contrary to the law of the Torah is ipso facto void (Kiddushin 19b). Therefore, such a condition would be ipso facto void in Jewish law. That is why, in all the laws about rent and tenancy in Choshen Mishpot, such a condition was not mentioned. It would not enter their minds that a landlord would dare impose such a condition.