The Kesef Kodshim (beginning of 316) learns that the din that a renter isn’t allowed to sublet an apartment to a bigger family, was only in the olden days. In those days it was upon the owner of the apartment to fix everything (some say even if the renter was negligent, he was still exempt). Generally speaking, the bigger the family, the more things break, and generally such breakages are considered מתה מחמת מלאכה – death through normal usage, which one is exempt for. As a result, it was forbidden to sublet to a large family, as ultimately it caused the owner of the apartment a loss.
However, nowadays, the general custom is that at the end of the lease, the renter must return the apartment the way he received it – this is written clearly in the contract. Being that this is case, what difference does it make to owner how many people are living there, either way he isn’t obligated to fix things and at the end of the lease he will receive his apartment back in the same state that it was rented out as. It’s a case of זה נהנה וזה לא חסר – this one gains, and this one doesn’t lose, and if the owner protests he is acting with middas Sadom [character traits of the people who lived in Sadom].
A Contract Is a Contract
Practically, on most rental contracts there is a stipulation written which clearly says, “it is forbidden for the renter to rent out his apartment without explicit permission from the owner”. Therefore, even the Kesef Kodshim will agree that a renter isn’t allowed to sublet his apartment, and certainly not to a larger family.
Even if the renter pays the owner more money, the Shoel U’Meishiv will agree that its forbidden, as the Shoel U’Meishiv is based on the Shu”t Maharam Bar Boruch, Shu”t Maharach Ohr Zoruah and the Shu”t HaRashbah who hold that if the renter pays for the damage then he can rent it to a larger family, however, in our case the owner clearly writes on the contract “it is forbidden to sublet” therefore, there is no room for leniency.
Is There a Problem of Renting a Rented Apartment to a Non-Jew to Avoid Having to Do Bedikas Chometz?
If we say that a renter isn’t allowed to sublet his apartment, how does it work when it comes to renting apartments to non-Jews over Pesach to avoid having to do bedikas chometz.
Many people who aren’t in their apartments for Pesach, sell/rent the entire apartment to a non-Jew, which helps absolve one from having to do bedikas chometz (see Mishnah Berurah 448:19). This is very common of Bnei Chutz La’aretz who live in Eretz Yisroel, and often return to Chutz La’aretz to spend Pesach with their family.
The Shu”t Shivas Tzion suggests that in such a case, one should clearly mention that the apartment is not being rented for purposes of living in, and is only being rented out to store utensils and moveable items (כליו ומטלטליו). However, he adds, if the owner lives nearby, the renter should ask permission before renting the apartment to a non-Jew.
The Shu”t Divrei Malkiel (Vol. 2, siman 22, s.k. 9) takes a more lenient stance and says, if the owner is Jewish then he expects his tenant to rent it to a non-Jew over Pesach, as that is what Jewish people do. If, however, the owner is non-Jewish, then it’s more difficult to say this.
The Shu”t Maharshag (Vol. 1, siman 56, s.k. 2) writes: That even if there is an explicit stipulation on the rental contact against subletting, we say that the owner doesn’t mean to include renting just to avoid the prohibition of owning chometz on Pesach.
If A Tenant Violates the Contract Who Does the Money Belong To?
If a tenant violates the contract and sublets the apartment without permission from the owner, does the money belong to the owner of the apartment, or does it still belong to the tenant? Similarly, even if a tenant has permission to sublet the apartment, who does profit go to, the tenant or the owner?
The Nimukei Yosef (Bava Kamma, 9a MiDafay HaRif) writes: “If the renter rents the item from the owner for cheap, and he sublets it to someone else for a higher price, if he had no right to do so, i.e. he rented it to a bigger family, then the fair ruling (shuras hadin) is that the extra money should be given to the owner, דאיך יעשה זה סחורה בביתו של חבירו – as how can one do business with the house of a friend?”
Personally on my contract it says: ...ר כמתחייב השוקופת החוזה ובסוף ת ...ש גרוע ומופרז ואי זהירותע''י שימוסב בהם נזק הדברים שהמתחייב השוכר לתקן את מו בעת קבלו את הדירהב ככיר את הדירה במצב טולמש ולמסור - “The renter obligates himself to fix anything which breaks through bad usage, and lack of carefulness ... at the end of the rental agreement the renter obligates himself ... to give back the apartment in good condition, like it was when it was received.”
If by renting the apartment out to a bigger family, the building will become weaker or some other type of damage which is not clearly visible will occur, and the owner won’t be able to demand money for it, then he may have a right to protest, however, normally speaking this is unlikely.
