LANDLORD AND TENANT:

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By: Executive Committee of the Editorial Board., Lewis N. Dembitz

I. Farming Land.

The Mishnah and later authorities speak of two kinds of tenants—the "aris," or the tenant on shares, the landlord receiving "one-half, one-third, or one-fourth," and the "ḥoker," or the tenant at a fixed rental, which in the case of farming land was usually payable in a fixed measure of the grain to be grown on the land, less frequently in money. Dwellings or business houses were, in the nature of things, let at a fixed rental in money. The word "meḳabbel" (lit. "receiver") is applied to both kinds of tenants, but more especially to tenants on shares; "ḳablan" always bears the latter sense.

The laws in force between landlord and tenant, the former being generally known as "owner of the field," are set forth in Baba Meẓi'a ix. 1-10.

Local Custom.

• 1. The first principle laid down is well known to English and American lawyers from the leading case of Wigglesworth versus Dallison—the force of local custom to supply many details in a contract letting land to farm: "Where one receives [i.e., farms on shares] a field from his neighbor, he must cut [the grain] where it is the custom to cut, and pull out where it is the custom to pull out; he must plow up the ground after [the harvest, in order to kill the weeds] where it is customary to plow up; all according to the custom of the province." So far the Mishnah; a baraita adds that local custom also decides whether the farmer on shares shall have part in the fruits of the trees, upon which he generally bestows no labor. Just as landlord and tenant share in the grain, in that proportion they share also in straw and stubble, branches and cane; and in like proportion both provide the cane for propping vines.
• 2. Where one takes from his neighbor (at a fixed rent) a field which depends on irrigation, or contains trees, and the spring for irrigation ceases to run, or a tree is cut down, he is not entitled to a deduction; but when the field is specifically let as an irrigated field, or as a place for trees, and the spring fails or a tree is cut down, a fair deduction from the rent must be made.
• 3. Where one takes a field from his neighbor (on shares) and permits it to lie fallow, the judges estimate how much it would have produced if cultivated, and he pays accordingly; for thus it is (usually) written: "If I allow it to lie fallow and do not work it, I shall pay according to the best possible results."
• 4. One who takes a field from his neighbor is required to weed it.
• 5. When one takes a field (on shares), as long as it produces enough to make a "heap" that will stand, he must labor on it. A baraita bases thisrule on the wording used when the contract is in writing: "I shall stand up, and plow and sow, and cut and bind in sheaves, and thrash and winnow, and set up a heap before thee; and then thou shalt come and take one-half [or one-third], and I for my toil and outlay shall take one-half [or two-thirds]." The terms of division are further discussed in the Gemara.
• 6. Where one rents a field from his neighbor, and locusts eat the crop, or it is burned, if the calamity be general, the landlord makes a deduction from the rent, but if it be not general he makes no deduction; for it is the tenant's ill luck. In discussing this section of the Mishnah the Babylonians differ in opinion as to the extent of country over which the calamity must range before the tenant is entitled to a deduction; but they generally admit that if he sows other than the kind of grain he has contracted to raise he is not entitled to any deduction. The position taken by R. Judah, that no deduction should be made where the rent is payable in money, was disregarded by the Babylonian teachers.

Payment in Kind.

• 7. If one takes a field from his neighbor at the rent of ten kors of wheat, or other grain, a year, and the quality of the wheat raised is not good, he may pay his rent with part of this wheat; should the wheat raised be better than usual, the tenant may not buy wheat of ordinary quality outside, but must pay his rent out of his own crop.
• 8. He who rents a field from his neighbor to sow it with barley, may not sow wheat; if to sow it with wheat, may not sow barley; if to sow it with grain, may not sow legumes (such as beans, peas, or lentils); but if to sow with legumes, may sow grain: R. Simeon ben Gamaliel forbade it. The majority allowed the change from wheat to barley or from legumes to grain because the latter exhaust the soil less; R. Simeon's broad prohibition of any change from the contract is based by R. Ḥisda on Zeph. iii. 13: "The remnant of Israel shall not do iniquity, nor speak lies; neither shall a deceitful tongue be found in their mouth."
• 9. He who rents a field from his neighbor for a "few years" (less than seven) should not plant it in flax, neither has he the right to cut timber from the sycamore-trees; but he who rents for seven years may plant flax in the first year, and may cut timber from the sycamore-trees.
• 10. Where one rents a field (in the Holy Land) for a "week of years" for seven hundred zuz, the seventh, or Sabbatic, year is included; but if he rents it for seven years it is not included.

These rulings are set forth, or at least indicated, in the Mishnah, in the chapter given. From the Gemara in the same chapter may be gathered the following rules:

• 1. When the tenancy is at an end and the harvest is not ripe enough to be cut and sold, the harvest is estimated, and the landlord takes it and pays for it. Should the tenant die before the end of the lease, the landlord must arrange with the heirs of the tenant on the basis of the work done and the benefit received up to the time of the tenant's death, the lease then being considered at an end (B. M. 109a).
• 2. The codes treat, in connection with the law of landlord and tenant, the case of the workman who agrees to plant fruit-trees, taking a share of the profit arising from the plantation. Here, when a doubt arises as to the amount of his share (one-half or one-third), it is to be determined by the local custom. If not more than 10 per cent of the trees fail to bear fruit, the workman ("shattelan") is excused; if more than 10 per cent, the whole deficit is charged to him. But a contract with the workman, that if any of the trees are made the worse by his planting he shall have nothing at all, is not enforceable (B. B. 95a).As to the duty of landlord and tenant in regard to fixtures, see Fixtures.

II. Town Property.

In the Mishnah and in the codes the law governing the tenancy of a dwelling or business house is given separately from that of rural leases, and the questions discussed are different. The tenant of a house is known as the "hirer" ("soker"), like the renter of chattels. Much less is said in the Mishnah and Talmud about town tenancies than rural ones (B. M. viii. 6-9, 73b, 101b-103a).

A lease for a certain time vests in the tenant a property right, which the landlord can not defeat by a sale. No tenant may be ousted before the end of his term by the landlord on account of the latter's needs, such needs, for instance, as may arise from the destruction of his own dwelling as by fire or storm. Where rent is paid in advance, no matter for how long a term, a binding lease for the time paid for is understood. A landlord who during the term sells or lets the house to one who through violence or by appeal to the law of the Gentiles evicts the tenant must provide the latter with another house as good as the first. The same rules apply where the use of a house for a year at a time has been pledged for the owner's debt: the pledgee has all the rights of a tenant.

Notice to Quit.

Where a house is let "to lodge" in, it means for a day; to "rest" in, for two days; and for a marriage, thirty days. But the unconditional ordinary letting of a dwelling-house means, in winter (rainy season), for the rest of the season, that is, from the Feast of Booths till after the Passover; in summer, till the expiry of a thirty days' notice to quit. But this applies only in a town ("'ir"); in a large commercial city ("kerak"), where the demand for houses is great, a notice must be given twelve months in advance. This is also the rule for all shops, both in towns and cities, in which the tenant sells goods; for a tradesman must have ample time to make his new place of business known to his customers. Simeon ben Gamaliel in the Mishnah holds that bakers and dyers are entitled to three years' notice to quit their shops. The codes differ as to whether his opinion should be followed. The tenant must in each case give as long a notice to rid himself of the obligation for rent as the landlord would have to give to him. Where the letting is for a fixed time no notice need be given by either party.

Where a house is let under notice of implied length only, without specified term, the rights of thetenant, while the notice to quit is running out, are not secure against the landlord's necessities. The latter, should his own house fall down, can insist that the tenant shall make room for him. Also, if during the running of the notice the market rate of rents goes up, the landlord can for the unexpired time ask for rent at the higher rate: on the other hand, if rents go down, the tenant can demand a reduction. But mere transfer of the ownership gives to the purchaser or heir no greater right than that of the original landlord.

Repairs and Restoration.

The owner must not during the term, or while the notice to quit is running, tear down the house. If he does, he is bound to replace it. Moreover, if it should fall through no fault of his while there is a lease for a fixed term, he must provide the tenant with another house, either elsewhere or by rebuilding, the new one to be of like size, and to have an equal number of rooms and windows. Should the house become dangerously insecure, it seems the landlord is bound only to pay toward its restoration the amount of rent in advance in his hands. What is said of a house applies to a court (group of houses), to a shop, or to a bath.

Where a house is let for a year, and the year is one of thirteen months, the tenant gets the benefit. If the renting is for so many months, the tenant must pay for each. In disputes as to the length of the lease, the presumption is on the side of the shortest term: for the landlord is the owner; and the burden lies on the tenant who sets up an adverse estate.

A tenant for a fixed term has the right to sublet the house to another for the remainder of his lease, provided the new tenant's household is no more numerous than his own; but the landlord can, if he wishes, prevent such subletting by taking the house back and releasing the tenant from all further obligation for rent. Where two men rent a house jointly, neither of them can transfer his share of the tenancy to a third person without the consent of his companion.

The duty as between landlord and tenant of making repairs and improvements and the correlative right to fixtures have been shortly discussed under Fixtures.

E. C. L. N. D.