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.