It’s very common for avreichim who are from Chutz La’aretz to come to learn in Eretz Yisroel for a few years after their chasunah. When they come to Eretz Yisroel, it’s very common for them to rent an apartment on a year-by-year basis (with the option of extending the contract at the end of the year, hopefully without the owner of the apartment raising the price to much). Very often these avreichim return to Chutz La’aretz for Nissan, the summer holidays, or for the birth of a new child. Whilst in Chutz La’aretz, instead of leaving the apartment empty, they rent it out to people who are on holiday in Eretz Yisroel, or who have come for a family simcha, or to people who have come for Yom Tov. Since these people are renting the apartment short term, they are prepared to pay more per day then one who is renting for an entire year.
Likewise, there are people who rent apartments in Tzefas for an entire year and pay $400 per month, and in the summer holidays they are able to rent out the apartment for $500 a week (when there is no war going on).
The question is, is a renter allowed to do the above without permission from the owner of the apartment. Especially, if it says on the rental contract “the tenant is not allowed to sublet the apartment” – which generally speaking, unless one changes the standard contract this is what it says.
Assuming that it’s forbidden to sublet an apartment without permission from the owner, must any money earnt be given to the owner of the apartment?
Finally, is it mutar [permissible] for a young couple living in Ramat Bet Shemesh with two children to swap a rented apartment with a young couple living in Yerusholayim who also have two children, for two weeks during bein hazmanin, without asking permission from the owner?
Source
The Gemara in Bava Metzia (29b) says: אמר ר״ש בן לקיש כאן שנה רבי אין השואל רשאי להשאיל ואין השוכר רשאי להשכיר – “R’ Shimon ben Lakish said, Rebbi taught: A borrower isn’t allowed to lend out what he borrowed, and a renter isn’t allowed to rent out what he rented”.
Rashi based on the Gemara in Gittin (29a) explains that the reason for this is, because the owner can say: אין רצוני שיהא פקדוני ביד אחר – “I don’t want that may deposits should be given to someone else”.
Based on the above, the Rambam (Hilchos Sechirus 5:5) learns that the din that “a renter isn’t allowed to rent out what he rented”, only applies to moveable goods (metaltalin) as they may be stolen or hidden, however, when it comes to a house, there is no fear that the new tenant will steal the rental (as a house can’t be taken and moved to another location).
The Rambam, however, says that the size of the new tenant’s family may not be greater than the size of the first family, since the larger the family the greater the likelihood of things getting damaged. (He specifically mentions that if there were four people in the first family the tenant may not rent to a family of five.)
The Rambam mentions that there is an opinion that a tenant may never sublet, but he disagrees. The Ra’avad in his hasogas [annotations] writes that he agrees with the opinion that a tenant may not sublet since there are tenants who destroy the property.
There is a third opinion, that of the Maharam MiRottenberg who agrees with the Rambam that a tenant may sublet but is more lenient than the Rambam in that he permits renting even to a larger family.
However, the Rashbah agrees with the Rambam, and the Shulchan Aruch (Choshen Mishpot 316) rules accordingly, without making any mention of a dissenting opinion.
There is a machlokes Achronim if the renter is allowed to rent the apartment to a larger family, if he pays extra rent to the owner. The Nesivos (333:4) maintains, if one rents a house, even if he has made a kinyan [acquisition] on the house and is obligated to pay rent, he has no right to rent it to a larger family. However, the Shu”t Shoel U’Meishiv (Mahadurah Tinyona, Vol. 4, 77) argues, and maintains that if the renter is prepared to pay extra rent to the owner, he has a right to rent it out to a larger family.
Personally, on my contract it says: לא את כלו ולא חלק ממנו כיר את הבית לאחרחייב לא להשכר מתשוה – “The renter obligates himself not to rent the house to anyone else, neither all of it, nor even part.”
