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Shabbat Parashat Korach 5772
Ask the Rabbi: Receiving Permission to Subletby Rav Daniel Mann
Question: I work on a campus, in a project funded by an outside foundation. As part of my employment agreement with the foundation, they rent on my behalf (I did not sign the contract, and the money did not go through me) an apartment on the campus throughout my employment (including vacations). I will be abroad during vacation and would like to make a little money by subletting the apartment (to a nice family). Do I need permission, and who should get the money: the foundation or I?
Answer: The halachic/legal status appears as follows from your description. The foundation rents the apartment from the campus and rents it out (with the campus’ permission) to you (in the form of part of your compensation package).
The first question we have to discuss is whether one who rents is allowed to sublet. One who rents a movable object is not allowed to give it over to someone else (Shulchan Aruch, Choshen Mishpat 307:4). However, regarding real estate, halacha generally allows the renter to sublet (Shulchan Aruch, CM 316:1, based on Rambam Sechirut 5:5). The Rambam bases this on an understanding that there has to be a good reason to disallow a renter, during the time he has full rights of use, from renting out to someone else. Regarding movable objects, there is a concern that something will happen to the object, and the owner may not trust the second person’s honesty. This is less of a concern regarding real estate. The Rambam makes common-sense distinctions, such as that one cannot sublet to a larger family, and further distinctions may be needed to deal with an apparent contradiction within the Rambam on this topic (see S’ma 316:1). The Rama (CM 312:7) adds that one can sublet only to an upstanding person.
In matters of this type, the local minhag supersedes classical halacha (Pitchei Choshen, Sechirut 4:(22)). Unless there are strong indications otherwise, we assume that a local (in this case, Israeli) law, sets the standard. Clause 22 of the Law of Renting and Borrowing states that one has to ask permission from the owner before subletting, but if the owner objects on unreasonable grounds, his objections may be ignored.
You should not sublet the apartment without discussing the matter with at least one of the parties. Both the law/minhag and probably the halacha mandate to give the owners (the campus) the opportunity to express any objections, which might include matters you did not consider. Furthermore, the foundation cannot give you more rights than they have themselves, and since it is common for a rental contract to disallow subletting without permission, you need to ascertain from someone what the agreement was.
The better question is if you receive permission from the campus, whether you have to get permission from the foundation, who might say that if you sublet, they want (some of) the money. It seems that as long as you are on staff, the apartment is not at their disposal for making money (i.e., they do not have a clause that if you go away, you have to allow them to rent it to others). The potential problem of subletting is a matter that affects the owner (his property could get damaged), and if the campus does not have concerns, the foundation can probably not raise issues. The question is in regard to your compensation package, as they might be able to claim that inclusion of the apartment in your salary was only as necessary and was not meant to include your making additional money off of it. We cannot tell for sure who would be right if such a claim were made without hearing both sides’ claims. We also don’t know if there could be any sensitivities regarding the relationship between the campus and the foundation. Therefore, even if for no other reasons than mencthlichkeit and to maintain good favor in your employers’ eyes, we feel that you should inform both the campus and the foundation of your intention to sublet and see if there are objections. (You do not have to suggest sharing the proceeds.)
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