Rent Control: the law and The Law? Dina Demalchusa Dina and tenant’s rights

How Does Halacha Relate to Rent Control Laws?

By Rav Yitzchak Grossman

Question

My tenant’s lease expires in a couple of weeks, and I have given him notice to vacate upon its termination. He responded that Chazal have instituted various rules protecting tenants from eviction in situations where it is difficult for them to find new premises, and that the secular law in our jurisdiction also forbids eviction in our circumstance. Am I really barred from utilizing my property as I see fit?

Answer

While it is true that Halacha forbids eviction under certain circumstances, this does not apply to our scenario, since the lease contains an expiration date. Thus the only remaining issue is whether Halacha considers secular rent control legislation binding between Jewish landlords and tenants. This is a question that has been heavily debated over the last century and a half, with no clear consensus emerging. There are two halachic principles that potentially call for the acceptance of the secular law:

• dina de’malchusa dina – “the law of the [temporal] government is the law”
• minhag – in monetary matters, particularly contractual ones, we usually follow the prevailing custom.

Dina De’Malchusa Dina

The application of dina d’malchusa dina to rent control legislation hinges on several major disputes among the poskim over the scope of the principle:

• Some rishonim limit the principle of dina d’malchusa dina to legislation that directly concerns governmental interests, such as taxation and currency regulation, while others disagree and extend it to any legislation for the benefit of society. It seems that dina d’malchusa dina can only apply to rent control legislation under the latter view, as there is no direct governmental interest served by such legislation. Moreover, there is an opinion that even the broader standard of “societal benefit” is not met, since although the legislation benefits tenants, it does so at the expense of landlords, and so cannot be said to be for the general good of society.
• Some poskim insist that in general, we ignore any law that contradicts Halacha, others disagree. In the particular context of rent control, some argue that such legislation constitutes an un-Halachic taking of property, particularly insofar as the law’s primary supporters are “free[-thinking] representatives, who hold the doctrines and opinions of the communists and socialists, to squeeze the rich and take their money, and all these doctrines are against da’as Torah”.
• There is an opinion that the criterion for the application of dina d’malchusa dina is that the law be “according to the Torah”, which is determined by the existence of relevant Halachic precedent. Some therefore argue that since Chazal have already instituted certain protections against eviction, a secular law forbidding eviction (but not a law prohibiting the raising of the rent to market rates) is valid.
• Some poskim suggest that even if the traditional criteria for dina d’malchusa dina do not apply, we still accept contemporary rent control legislation, either because modern democratic governments have more Halachic authority than the ancient autocracies, or because in the absence of our traditional independent communal structure, we have no choice but to recognize secular legislation.

Minhag

Many poskim maintain that regardless of the applicability of dina d’malchusa dina to rent control legislation, insofar as the law already existed at the time of the initial contract between landlord and tenant, this creates a minhag, and we apply the standard rule that any agreement is presumed to incorporate the prevailing custom.

Of the poskim who are skeptical toward rent control legislation, most do not raise the question of minhag at all, and their attitude toward the above argument is therefore unclear. There are those, however, who explicitly reject the idea of following such a minhag, asserting that it is not a “minhag vasikim”, and only exists because of the impotence of Bais Din.

Conclusion

There is considerable debate over whether the principle of dina d’malchusa dina applies to rent control legislation. Many poskim maintain that even if it does not, the law still creates a binding minhag. However, this too, is not unanimously accepted, although the level of opposition to this approach is somewhat unclear.

The normal rule in the case of unresolved Halachic disputes is that the possessor of the property in question (muchzak) is entitled to retain it (ha’motzi me’chavero alav ha’rayah), but in our scenario, the very question of who is considered the muchzak is itself the subject of considerable dispute.