Question
I rented an apartment two months before the current tenant's lease was going to finish. The owner told me that the present tenant did not want to remain beyond the end of his contract and we signed a rental contract to start the day after the present tenant's contract was set to end. I made a down-payment of one month's rent. About three weeks later the landlord called and told me that the present tenant changed his mind and wants to stay for another year and will pay more rent that we had agreed upon and therefore, he is canceling our agreement. Does he have the right to do so since I thought I made a kinyan for the next year?
Answer
You are fully correct, according to many poskim, in saying that you made a kinyan for the next period. However, even according to these poskim it is possible that the landlord can still change his mind since at the time that you made your kinyan the apartment was rented to someone else i.e., the present tenant. The answer to your question depends on several fundamental disputes concerning the nature of every rental.
The first question concerns the basic validity of your contract, since at the time that you signed your contract the apartment was rented out to someone else. The problem is that one cannot rent out a property that he does not own. Just like one cannot sell a property that he already sold, so too maybe one cannot rent out a property after he already rented it out. Of course, when one sells a property he retains no ownership of the property, whereas if he rents out a property, he retains ownership of the property and perhaps can rent it out for a future period.
The Shach (312, 3) cites the Mabit (1,346) who rules that one is able to rent out his property for a future period even if the property was rented out to someone else at the time that the new rental agreement was made.
Two Approaches to Future Rentals
There are two approaches to explain the mechanics that enable the landlord to rent out the property at a time that it was rented to someone else.
The approach of the Beis Shlomo (CM 117), Divrei Mishpot (CM 315) and Rav Shimon Shkop (Ma'areches Hakinyonim 19) is that when one owns a property, he also owns the right to rent out the property for every period of time that exists. Therefore, even if the landlord rented out his property for year 1 to A, he retains full ownership of the right to rent out the property for future years since his ownership of the right to rent out his property is broken up into distinct periods. Thus, even during year 1 the landlord is perfectly able to rent out the property for year 2 to someone else, since A does not have any rights to year 2 since we view each period's rental as a distinct unit.
The Nesivos (211, 5) Divrei Mishpot (211, 3) and Chemdas Shlomo (CM 8) have a second approach. They do not view each rental period as an independent unit but rather view the right to rent out the property as one single right. Thus, even though the landlord retains full ownership of the property when he rents it out, he does not have any right to rent out the property for a future period because he gave up his ownership of the right to rent out the property when he rented out this property to A.
The problem with renting out the property for a future period, according to these meforshim, is that normally one cannot transfer future ownership since future ownership is a dovor shelo bo le'olom. since he does not presently have ownership of this right. Therefore, it would seem that the landlord cannot rent out his property for a future period since he does not own those rental rights now.
These meforshim explain that the reason the Mabit ruled that the owner has the ability to rent out the property for a future period is because ownership of the right to rent out the property will automatically revert to him when the current rental ends. These meforshim base themselves on a ruling of the Mishna Lamelech that since it is only a matter of time until the rental rights revert to the landlord, the future rental right of the landlord is not considered a dovor shelo bo le'olom.
We should note that the Beis Shlomo asks that the Nesivos in many places (explicitly in 315, 1 but to some degree in 312, 3 and other places) views the relationship of the landlord to a property that he rented out as full ownership with only an obligation to allow the tenant to use the property for the duration of the rental period. This obligation is similar to what one has when he designates his property as collateral for a loan.
Distinction Between the Two Approaches
There is a major distinction between these two approaches to explain the Mabit's ruling that bears heavily on your question.
According to the first approach, when the landlord rents out the property for a future period the contract is effective immediately since the present rental does not interfere with the future rental in any way. Since the contract is immediately effective, the landlord cannot back out of the rental even before the second rental period actually begins. Similarly, even if the landlord should pass away or sell the property before the rental period begins, the rental remains valid.
However, according to the second approach, the second rental agreement only becomes effective when the first rental terminates. The fact that the future rental right is not a dovor shelo bo le'olom only enables the landlord to execute a contract that will become effective at a later date, but it does not move up the effectiveness of the contract. Therefore, normally the landlord is able to back out of a contract that he makes for the future rental period. Proof for this contention is the ruling of the Gemara (BM 66B) that even according to those who maintain that one can sell a dovor shelo bo le'olom, like fruit that just began growing, nevertheless, he can cancel the sale before the fruit grows to a state when it no longer is a dovor shelo bo le'olom. Similarly, if he sells the property or passes away before the beginning of the second rental period, the second rental agreement will never become effective.
We note that even according to the second approach it is possible to move up the effectiveness of a rental contract for a future rental, by adding the word mei'achshov-from now, to the rental contract. The Nesivos (ibid) even argues that it is understood whenever one rents a property for the future that he wants it to be effective immediately. Thus, according to him, even without the addition of the word "mei'achshov" the contract is immediately effective.
However, other meforshim like the Chemdas Shlomo (ibid) and the Bigdei Kehuno (CM 3) maintain that without explicit insertion of the word mei'achshov, the contract is not effective until the beginning of the second rental period. Therefore, they maintain that the landlord can back out of the rental agreement before the rental period begins.
Practical Application to the Question
Returning to your question, according to the Chemdas Shlomo and Bigdei Kehuno your landlord's canceling your contact is valid, whereas according to according to the Beis Shlomo, Divrei Mishpot (in siman 315), Rav Shimon and the Nesivos it is not valid. All of the above is only according to the ruling of the Mabit that one has the ability to rent out his property when it was rented out to someone else.
However, there are poskim who disagree with the Mabit.
One of those poskim is the Beis Yacov (res. 90). He was asked exactly your question and ruled that the current tenant can stay. His reason is because as long as a property is rented out, the landlord cannot rent it to another person even for the future. It is not perfectly clear what his exact position is. The Pischei Teshuvo (315, 1) maintains that according to the Beis Yacov even if the contract with the second renter says mei'achshov, the current renter prevails. Additionally, the Maharshdam (CM 277, 288) maintains that when one rents a property while it is rented to someone else, his action is null and void because the landlord rented out a property that he does not own. If one follows this approach, the landlord certainly had the right to cancel your rental.
Even though the consensus approach and the minhag is that one may rent out his property for a future time even while it is rented out, like the Mabit ruled, nevertheless these opinions are support for those who maintain that even according to the Mabit the landlord has the right to cancel your rental agreement.
In conclusion: Since according to many poskim your landlord had the ability to cancel your rental agreement, you cannot force him to allow you to move into his property.
