Question
I rented an apartment for a year. In the contract we wrote that I have the right to terminate the lease whenever I want, provided that I give the landlord thirty days written notice of my intent to leave. Furthermore, in compliance with the terms of the contract I gave the landlord an open check as a security deposit. I informed the landlord orally of my decision to leave and he did not object and after thirty days I vacated the apartment. Now my landlord says he does not remember me inform-ing him of my intent to leave and he wishes to use my security deposit to collect rent for the month. Is he permitted to do so?
Answer
The first issue to determine is who is the plaintiff (motsei) and who is the defendant (muchzak). Generally, the Gemoro rules that karka bechezkas beoleho omedess that in case there are disagreements between the landlord and the tenant, the landlord is the defendant and the renter is the plaintiff since the landlord owns the property. For example, the Gemoro (BM 110A) rules that if the owner and the renter disagree whether the renter has more time remaining for him to occupy the property the owner is believed because the burden of proof rests on the renter since he is the plaintiff.
The Darkei Moshe (317, 3) writes that the Mordechai (BM 387) maintains that even if only after the rental period ended the renter and landlord have a monetary dispute that stems from the rental e.g., they disagree if the renter paid the rent in full or not, or what was the rental amount, the land-lord is believed because of the rule that karka bechezkas beoleho and that is what the Ramo maintains in the SA (317, 2). He agrees that there are others who maintain that the renter is gener-ally believed but maintains that this issue is disputed by the poskim.
The Shach (317, 5) vehemently disagrees with the Ramo and maintains that since this is purely a monetary issue and not an issue if the renter is allowed to use the property, everyone agrees that the principle that karka bechezkas beoleho does not apply and the landlord is the plaintiff. Therefore, he maintains that if the landlord and tenant disagree if rent was paid in full and the rent-er no longer resides in the rental unit he is generally (provided he has a mego) believed.
The Ra'anach (1, 38) was asked to rule concerning a dispute between a tenant who claimed that the landlord agreed that he could terminate their contract and the landlord who denied the claim. The Ra'anach ruled (his ruling conforms with the Shach but he preceded the Shach and his ruling is rec-orded by the Knesses Hagedolo 317, Notes on the Tur 2) that since the issue does not concern use of the property but rental payments, the owner is the plaintiff and the renter is the defendant and the burden of proof rests on the landlord.
Similarly, the Nechbo Bakesef (2, CM 9) was asked to decide a dispute between a landlord who claimed the tenant rented for a year and a tenant who claimed that the rental was only for half a year. The Nechba Bakesef likewise ruled that since the essence of the landlord's claim is that the tenant owes him rent for another half year, the tenant is the defendant and the burden of proof rests on the landlord.
We should note further that even though you admit that you did not give written notice, neverthe-less you may vacate the apartment if you informed the landlord orally and the landlord did not ob-ject even though under the rental terms you were required to give written notice. We can prove this from a ruling of the SA (70, 4) concerning a person who borrowed money with the stipulation that when he repays, he must repay in the presence of A and B who would serve as witnesses that he repaid. SA rules that even though the borrower obligated himself to pay in the presence of A and B, if C and D testify that the borrower repaid the loan, the borrower is no longer obligated to repay. The Sema (70, 14) explains that the reason the borrower is no longer obligated to repay is because the goal of the lender in requiring repayment to be made in the presence of A and B was to prevent the borrower from claiming that he repaid in the presence of witnesses who passed away. Since he did not do so, the witnesses that the borrower brought are believed and the borrower is absolved of his debt.
In your case, the landlord did not stipulate that you must present evidence that you served notice of your intention to leave since he only stipulated that you must inform him in writing of your intent to leave. Thus, we can understand that his intent was just that you should not inform him in a nebulous manner. Therefore, since you maintain that you informed him clearly and he agreed that you may leave, the fact that you did not literally fulfill the landlord's condition does not invalidate your notice of your intent to vacate.
We should note that everything that was said until this point is valid even if the landlord would have claimed that he is certain that you did not serve notice that you intend to leave (because you have a mego that you could have claimed that you paid rent for the controversial period).
The final issue we have to investigate is whether the fact that your landlord has a security deposit, which serves as collateral, changes the situation and transforms the landlord to be the defendant and you the plaintiff. However, in your situation the landlord is uncertain that you did not inform him and the SA (72, 24) rules that one who is uncertain cannot use the collateral (mashkon) to collect a debt. Furthermore, even if the landlord would be certain that you did not inform him, hav-ing a check would not suffice to transform the landlord into the defendant since he is not holding on to the money that you have in the bank which is what he wants to collect. Therefore, the landlord remains the claimant and since he has no proof that you owe him money you do not owe him any money.
In conclusion: Your landlord may not cash your security check in order to collect rent for the period following the time you claim that you informed him of your intention to vacate.
