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Shabbat Parashat Vaiera 5777

Ask the Rabbi: To Whom to Sell Ones Apartment?

Rav Daniel Mann

Question: My apartment is for sale, and the apartment’s present renter and my nephew are interested in buying it. Do laws of precedence apply here? If so, does it make a difference if someone offers more than others?

 

Answer: Our response cannot cover all elements of your case without hearing the claims of all affected sides. Our response is intended to inform you of your responsibilities based on your account.

There are two levels of precedence regarding selling land. One is non-binding. In this regard, a relative has precedence over those with no connection to the seller, but a talmid chacham and a neighbor have greater precedence (Shulchan Aruch, Choshen Mishpat 175:50).

A bar metzra or matzran (he who lives on the boundary) has a higher level of precedence, including the possibility of legal action. Specifically, if a sale that ignores a matzran’s rights occurs, he can take the land from the buyer for the sale price (Shulchan Aruch ibid. 6). The is a takana based on doing the “good and straight thing” to give the opportunity to buy property to one who can benefit more than others, classically when he can connect the properties. A matzran’s rights are not intended for cases of innate loss to the seller (Rama ibid. 23). Therefore you have a right to sell to whoever agrees to the highest final price or best conditions for you.

Being a relative does not give such rights. There are no gemarot about a renter, but there is discussion (Bava Metzia 108b) of a similar case (i.e., temporary connection to land), when one has a lien on land (mashkanta). Rishonim and Acharonim debate several questions regarding renters and mashkanta, including whether a matzran has precedence in renting a property next to his and whether a matzran can demand the land already sold to its renter. Regarding continuing to rent the property as opposed to bringing in a new renter, the Taz says the renter has rights, the Pitchei Teshuva (175:27) brings a dissenting view, and the K’tzot Hachoshen (175:3) says it depends if the owner has good reason to want the renter out.

The Shulchan Aruch (ibid. 60) says that a renter’s connection to a property adjacent to his rental is insufficient for him to take it if sold to someone else. What about the sale of the rental property itself (without compromising the renter’s existing rights)? On one hand, combining properties does not apply. On the other hand, being able to acquire property to which he has become accustomed may count as maximization. The Shulchan Aruch (ibid. 63) says that here too, the renter does not have matzran rights.

However, matters are not that simple. Regarding mashkanta, the Rama (ibid. 57) argues on the Shulchan Aruch and rules that the lender, who holds the lien of the property, can claim the purchase rights. The S’ma (175:116, cited by Netivot Hamishpat 175:67) claims that the Rama likewise argues with the Shulchan Aruch and gives purchase rights to the renter on the rental property, as well. In some ways, a renter is better than mashkanta based on the concept that rental is like a sale (Bava Metzia 56b). The Pitchei Teshuva (175:28) cites several who assume that the Rama does not argue regarding rental (the main claim is that a lien is more significant long-term than a rental). On the other hand, the Shulchan Aruch’s author (see Beit Yosef, CM 175) does not totally reject matzran rights to a renter but stresses that it is not strong enough to extract property from one who bought the land. Since you are asking about the proper actions before having sold, there is reason to give the renter preference.

Therefore, you have a choice between a relative’s weak halachic preference and a machloket about a renter’s possible full bar metzra rights along with the likelihood of some level of his precedence. This seems to be a case where discussion can be helpful. The parties should know that while you care about the interests of each, neither seems to have a clear halachic advantage over the other. We hope you will be able to resolve things without hurt feelings.

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