Out of Place: May a Tenant Be Evicted for Nonpayment?

Adapted from the writings of Dayan Yitzhak Grossman

March 20, 2025

The Associated Press reports:

California law allows landlords to evict tenants for nonpayment regardless of whether they are willing and able to pay their overdue rent. Tenant advocates…are pushing a proposal in the Legislature that would bring California in line with 21 other states that ban nonpayment evictions for tenants willing and able to pay up…

Meanwhile, California tenants have just three business days to respond to a landlord’s initial notice that they must pay rent or be evicted. After that, the property owner can proceed with the eviction regardless of whether the tenants have paid their bill…

Property owners who file a nonpayment eviction may have other reasons to want to evict particular tenants, such as if they are not keeping their unit clean or are antagonizing other tenants, said Daniel Bornstein, a San Francisco attorney representing landlords. “The easiest type to prove is nonpayment of rent,” he said. If tenants can wait to pay their back rent until a sheriff is knocking at their door, he said, there’s no incentive to pay on time, rendering the lease meaningless. “There has to be a line in the sand from a public policy standpoint or there never is an end point when the debt has to be paid.”

The bill pending in the Legislature would require a court to dismiss a nonpayment eviction if at any point before tenants are actually removed from their home, they can pay all the rent accrued up to that date…[1]

Classic halachic literature includes little discussion of the right to evict a tenant for nonpayment of rent. The earliest direct discussion of this issue that I am aware of is by the Maharit (R’ Yosef de Trani), who takes for granted that it is grounds for eviction:

One who rents a house to his fellow for twelve dinars per year—a dinar per month, payable monthly—and the tenant is poor and does not have the resources to pay for the past and for the future, can the landlord not tell him, “Leave my house, for on these terms I did not rent it to you”?…It appears obvious that he may evict him, for he only rented the house to him on condition that he pay each month for that month.[2]

A seemingly opposing position appears to have been espoused centuries earlier by the Ritva. He asserts that if a person rented a house and then died, his heirs may continue using the house for the duration of the lease, and they are not obligated to pay rent unless the dead man’s estate includes property subject to a lien for the rent.[3]

The Sha’ar Mishpat (R’ Yisrael Isser Isserlin) argues that the Ritva might only mean that if the heirs have already used the rented property for the duration of the lease, they are not liable after the fact for the rent, but the Ritva would agree that during the term of the lease, the landlord may indeed evict the heir for nonpayment.[4]

Other Acharonim apparently take the Ritva’s comments at face value and understand him to mean that the heirs are permitted ab initio to use the property despite not paying rent. For example, R’ Akiva Eiger adduces the Ritva in support of his suggestion that when a person purchases personal property (metaltelin) and dies before paying, his heirs may keep the property without payment, because heirs inherit rights from decedents but do not assume their obligations (and metaltelin are not subject to liens in this context).[5] Elsewhere, in a teshuvah regarding a man who rented an apartment and then died, R’ Akiva Eiger suggests that his widow might have the right to continue living there for the rest of the current year (i.e., in the case of a tenancy from year to year or similar arrangement) despite the fact that the rent had not and would not be paid. This is because at the beginning of the year, the husband had already acquired the rights to the apartment for the entire year, and the widow does not assume her husband’s liability for the rent upon his death.[6] R’ Akiva Eiger provides no source, but his position here is consistent with his previously cited analysis in which he cites the Ritva.

The position of the Ritva (according to a simple reading of his words) and R’ Akiva Eiger that a landlord may not evict the heirs or successors of a deceased tenant despite nonpayment would seem to contradict the Maharit’s assumption that a landlord may “obviously” evict a tenant for that reason. Perhaps there is a distinction between the cases of living and deceased tenants, and the Ritva and R’ Akiva Eiger would agree that a living tenant can be evicted despite their view that his heirs cannot, though the rationale for such a distinction is unclear to this author.

The analogous question of voiding a sale for nonpayment is also not clearly discussed in early halachic sources, and it is seemingly first discussed by Acharonim of only a couple of centuries ago.

The Gemara says:

For Rava said: Concerning one who sold something to his fellow but did not receive immediate payment: If the seller goes in and out after the purchaser in pursuit of the money due (“ayil venafik azuzei”), the purchaser does not acquire the property. But if the seller does not go in and out after the purchaser in pursuit of the money due, the purchaser acquires the property.[7]

While the Gemara does set forth the rule that the seller being ayil venafik azuzei voids the sale, it does not address the more general question of the right of a seller who was not necessarily ayil venafik azuzei to void a sale for nonpayment. The Nesivos Hamishpat (R’ Yaakov Lorberbaum) rules that whether the seller was ayil venafik azuzei only matters if the buyer is now prepared to pay in full, but the seller wishes to void the transaction because the buyer did not pay at the time of the sale. In such a case, if the seller was ayil venafik azuzei, the sale is void, but if he was not, it is valid. However, if the buyer is even now unprepared to pay, the sale is void even if the seller was not ayil venafik azuzei.[8]

The Nesivos articulates the same doctrine—that failure to pay in full renders a sale void—in another context as well: The Acharonim rule that if a husband purchases a get (bill of divorce) on condition of immediate payment and then does not make the payment, the get is considered stolen property (and thus invalid to use to divorce his wife).[9] The Nesivos explains this in accordance with his previously cited position:

It is evident from this that one who sells on condition of immediate payment, we do not say that the money is merely an obligation incumbent upon the buyer, but rather that the item itself belongs to the seller if the buyer does not pay him…

The Nesivos goes on to clarify that this rule applies even in the absence of an explicit condition: As long as the item was sold on a cash basis rather than on credit, nonpayment voids the sale.[10]

In his Meshoveiv Nesivos, the Ketzos Hachoshen (R’ Aryeh Leib Heller) disagrees and maintains that absent an explicit condition, a sale is not voided for nonpayment, unless the seller is ayil venafik azuzei.[11] Additionally, we have seen that R’ Akiva Eiger suggests that the heirs of a person who purchased personal property and died before paying for it may be entitled to keep it without paying, so it would seem that he, too, would disagree with the Nesivos that nonpayment voids a sale. Unless, as proposed above, we distinguish between a living purchaser and a dead one.

[1]Felicia Mello/CalMatters. They tried to pay their overdue rent. Their landlord wouldn’t accept it. CalMatters/AP News. https://apnews.com/us-news/california-legal-proceedings-san-francisco-general-news-47a4b684bc5f458708a72b4433de56a8.

[2]Shu”t Maharit cheilek 1 siman 113 s.v. Va’ani ragil lehakshos…Ve’od afilu teima (cited by the Maharit’s talmid R’ Chaim Benveniste in Knessess Hagedolah C.M. siman 312 Hagahos Tur os 3).

[3]Chidushei HaRitva Ksubos 34b s.v. Veyeish letareitz.

[4]Sha’ar Mishpat siman 107 s.k. 2.

[5]Chidushei R’ Akiva Eiger to Shulchan Aruch C.M. 341:1. Cf. Avnei Hachoshen siman 107 os 3.

[6]Shu”t R’ Akiva Eiger (cheilek 1) at the very end of siman 133.

[7]Bava Metzia 77b.

[8]Nesivos Hamishpat siman 190 Biurim s.k. 7 (and cf. siman 191 Biurim s.k. 3). The Nesivos notes that this position was earlier articulated by the Machanei Efraim (Hilchos Mechirah–Kinyan Ma’os siman 12).

[9]Chelkas Mechokeik siman 120 s.k. 5, Bais Shmuel ibid. s.k. 3.

[10]Nesivos Hamishpat siman 91 Biurim s.k. 9, and cf. Toras Gittin siman 120 Biurim s.k. 5. Shu”t Bais Shlomo E.H. siman 143 p. 139b agrees with the Nesivos. But Bais Meir E.H. ibid. se’if 2 s.v. Hagahah: Aval gazal get maintains that the ruling of the Acharonim applies even in the absence of an explicit condition in the case of a seller who is ayil venafik azuzei, which would seem to imply that it would not apply in general, and thus that he does not accept the doctrine of the Nesivos that even in the absence of ayil venafik azuzei, a sale can be voided for nonpayment if the buyer is unprepared to pay.

Cf. Nachal Yitzchak (cheilek 2) siman 96 os 4 anaf 1 p. 378; Shu”t Bais Yitzchak E.H. cheilek 1 siman 112 os 2; Shu”t Migdal Hashein siman 87 s.v. Ve’atah navo; Shu”t Or Hameir siman 55 os 5.

[11]Meshoveiv Nesivos ibid.