Shabbat Parashat Chayei Sarah 5785

P'ninat Mishpat: Proof Needed to Remove a Squatter – part III

Case: The plaintiff (=pl), an educational organization that has a kollel, have been operating for many years out of a property (=prp) owned by a municipality (=mun). In 2021, they rented out part of prp to the defendant (=def), a yeshiva, for a year, for 20,000 NIS a month. Toward the end of the year, pl informed def that the rental would not be renewed and that they must vacate prp. When def refused to leave, pl placed locks on the doors to keep def’s students out. Def asked beit din for a restraining order to remove the locks and allow def in. Beit din rejected this request, yet def ignored the ruling and got in. Pl asked beit din to have def removed and make them pay the unpaid portions of their rental and, looking forward, 1,000 NIS for every day they do not vacate. Def claim that pl have no right to remove them or demand money because pl are neither the owners nor the organization that was given control of the property, which was org2. Pl say that since org2 were unable to finance building on prp and operating there, they gave pl, who paid substantially, all such rights.

Ruling: [After seeing that pl can remove def, we now deal with monetary issues. Part of the complication is that after initially taking part in the process, def later boycotted the hearings.]

Although the rental contract is for 20,000 NIS a month, in pre-hearing letters, def’s lawyer essentially admitted that during the year, def expanded their usage of prp and accepted a 5,000 NIS raise in rent. Based on the records pl presented, this raises rental debt to 133,600 NIS. If def reengages in the process and brings claims and/or documentation to dispute the numbers, beit din will reconsider.

It is difficult to determine the exact debt for electricity because the meters do not reflect price differences according to time of day and season. The contract allows pl to charge def according to an estimate. The system pl proposed is reasonable in beit din’s eyes and results in a charge of 12,780 NIS. The same is true of the charge for water (12,876 NIS). Beit din reduced pl’s charge for def’s participation in municipal tax by a few hundred NIS (to 38,322 NIS) because it did not agree with pl charging for full months in the first and last month in which def was not present for a few days in the beginning and end, respectively.

The contract states that def will pay an agreed penalty of 1,000 NIS per day for as long as def refuses to leave prp, in addition to regular charges for usage. One could claim that def is exempt because this is an asmachta (an exaggerated obligation that people accept without believing it will come to fruition). The fact that the contract states that obligations should not be considered asmachta does not remove the ability to claim asmachta. However, the “admission” in the contract that a retroactive kinyan was made on the terms does overcome asmachta (see Shulchan Aruch, Choshen Mishpat 207:15). Also, the fact that the law and minhag are that arbitrators are expected to lower the penalty payment to reasonable levels removes the element of exaggeration at the base of asmachta. Therefore, def is obligated to pay 11,000 NIS up to the date of 19.7.21 and an additional 1,000 NIS a day until they vacate prp.     

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