The Mandels rented an apartment owned by Mr. Tanenbaum with a two-year lease. The lease contained an early termination clause, which allowed the Mandels to leave early with 60 days’ notice.
After a year, the Mandels decided that they wanted to move to a different community that was more appropriate for them.
They found a house there, which was supposed to be vacated in the summer. Mr. Mandel called Mr. Tanenbaum in May. “Be”H, we will be leaving at the end of July,” he notified him.
Meanwhile, Mr. Tanenbaum began showing his apartment to prospective tenants.
Sometime in June, Mr. Mandel was told that the house they expected to move into would not be available until the winter.
He immediately called Mr. Tanenbaum. “I just heard that we will not be able to move into the house until the winter,” he said.
“That’s not acceptable,” said Mr. Tanenbaum. “I am close to signing with a new tenant for a three-year lease at a significantly greater price. I don’t think he’ll be willing to wait till the winter, and it’s hard to find renters then.”
“I understand,” said Mr. Mandel, “but we also are in a bind. We have no place to go for the few months until the winter. Our lease is till next spring, so we are entitled to stay in the apartment if we want.”
“Once you gave notice that you are terminating the rental early,” argued Mr. Tanenbaum, “you gave up whatever rights you have in the apartment.”
“I disagree,” said Mr. Mandel. “Until we return the property to you, we retain the usage rights!”
The two came before Rabbi Dayan and asked:
“Can Mr. Mandel retract from his notice and continue living in the apartment?”
“Rivash (Responsa #510) addressed a similar case,” replied Rabbi Dayan. “Someone signed a rental contract, made a kinyan, and paid the rent up front, but the landlord stalled in handing him the premises. Finally, the tenant told the landlord to simply return the money and void the rental. The landlord agreed, but the tenant subsequently recanted and decided that he wanted to uphold the rental.
“Rivash ruled that the renter’s rights to the house were not canceled by his request to return the money, since rental is like a temporary acquisition (B.M. 56b; C.M. 227:35). An acquisition cannot be forgone or undone by speech alone, but must be returned with a counter kinyan (Rema 189:1). Therefore, the rental remains in force” (Beis Yosef, C.M. 312; Sma 315:2).
“Machaneh Ephraim (Sechirus # 9) disagrees. He maintains that since the property belongs to the owner – when the renter withdraws, the usage rights automatically revert to the landlord, even without a counter kinyan.
“Kovetz He’aros (Yevamos 53:5) explains that the root of this dispute is the nature of a rental. Rivash maintains that a renter acquires pseudo-ownership of the usage (kinyan peiros) for the rental period, so that forgoing does not revoke it without a counter kinyan. However, Machaneh Ephraim maintains that the renter merely has usage rights (shibud), without pseudo-ownership, so that he can forgo these rights with a verbal statement” (see Rema, C.M. 333:8).
“Due to this dispute, Emek HaMishpat (Schecheinim #1) concludes that the landlord cannot evict the tenants who currently possess the property; they can retract from their notice and continue living there for the duration of the rental term” (see also Piskei Din Yerushalayim, vol. 1, pp. 39-42; however, Pischei Choshen, Sechirus 4:[7]).
“If the landlord wants to secure the termination,” concluded Rabbi Dayan, “he can stipulate in the lease that early termination notice is irrevocable, or make a kinyan with the tenants upon receiving notice. A formal letter of termination, signed by the tenants, could possibly be considered a kinyan situmta for this purpose.”
Verdict: A tenant with an early termination clause who gave verbal notice of early termination can retract, unless the lease stipulated that the notice was irrevocable, a kinyan was made, or, possibly, the tenants gave formal written notice signed by them.
