I. Framing the Problem: “They say ‘We’re in this together,’ but are we really?”

Patricia Mendoza rents in Imperial Beach, California. She is a single mother of two children, and she works for a non-medical emergency transport company. She is a member of ACCE (The Alliance of Californians for Community Empowerment). Before the pandemic, she was making $2000 a month, and her rent was $1500. Now, Patricia cannot make her rent payments. She is not alone. In July 2020 19% of Americans did not pay their rent and another 13% made partial rent payments. As unemployment rises above 10%, and federal and state moratoria begin to expire, many people could be evicted from their homes.

108 million people rent their homes in the United States, and around four millions evictions are filed every year. The housing crisis is not new, and the pandemic has only made a bad situation worse. Many renters were in trouble before Covid arrived: one in four tenants in the United States use more than half their income to pay rent. Over the past several decades, median housing prices have risen 121%, while median incomes have only risen 29%.

The lack of affordable housing was compounded by the 2008 housing crash, in which ten million Americans lost their homes due to foreclosure. That crisis has changed the way Americans live. Less than a third of those who lost their homes to foreclosures during the financial crisis were able to become homeowners again: their “credit and psyches” were tarnished. Moreover, as Francesca Mari discusses in the NYRB, some ended up renting the very homes they had lost in 2008. They rent these houses from large, corporate landlords, which acquired them indirectly from the federal government at bargain prices and have now jacked up the rents and refuse to provide basic services.

More broadly, there are more renters now than before 2008. In particular, in almost half of large cities, renters outnumber homeowners. Homeownership is increasingly out of reach for all but the wealthy. As The Right to the City Alliance argues, if the 2008 housing crisis hit homeowners, the recent housing crisis has hit renters, who are unable to afford the cities in which they live. This crisis, which is nearly a decade old, has become an emergency due to the mass unemployment caused by Covid 19.

*

In this source sheet, we will explore two questions: Do people not need to pay rent in a crisis? And, if one answers that they should, should people who can’t pay rent get evicted? The sources included below will offer solutions to the current housing crisis, rooted in Jewish law and ethical guidelines from our Torah.

An important caveat: strictly speaking, there’s a question of how the laws described here interact with secular law, to whom they apply, and so on (questions connected to the Jewish legal idea dina d’malkhuta dina, “the law of the government is law”). We are treating the halakhic (legal) texts discussed below as an ethical tradition which makes claims on us and should shape how we think about secular law and policy.²

The reasons to study these laws, in our opinion are: 1) they suggest that rent cancellation isn’t just a meritorious, compassionate act of generosity—it might be instead a right that tenants have and 2) it reframes how we think about renting and property relationships generally, relativizing some of the assumptions of late-capitalist America.³ A corollary of this point is that there will necessarily be some imprecise adjustment between the recommendation of these sources and the policy in the United States. For instance, we will look at many sources that discuss rent reduction, but the best mechanism for implementing that practically in our context may be a rent cancellation combined with some bailouts for eligible landlords. In such cases, the underlying point that emerges from the texts discussed below is that landlords may not have the intuitive normative claim to full rent payments right now that they ordinarily do. The movement for rent cancellation captures a core ethical and legal intuition embedded in Jewish sources, even if the quantitative details are complex.

Finally, our learning is inspired by Mendoza’s voice. We want policy makers, communities, companies and individuals to listen to renters on the brink of eviction. Here is one of her statements we think is especially powerful:

I just want the government to cancel rent, to cancel mortgage payments by taxing corporate landlords or Wall Street companies that have been making billions. They say “We’re in this together” but are we really? Am I going to tell my kids three or six months from now that we have to be homeless, that we have to live in a van? I mean, really?

II. Framing the Question: Half-Enslaved, Half Free

We want to frame our exploration with the following Hasidic story, which serves as an entry point into the way Jewish texts think about landlord-tenant relations, but which is also evocative on the situation of the tenant. 

To quote Rabbi Baruch Meir Levin, author of Landlord-Tenant Halacha: “And according to the Ritva, apparently it would turn out that the same rule would apply to a renter who does not pay, that the landlord would not be able to evict him from the house and would only be able to continue to strive to receive the rental payment” (83n140).

Question:

What follows from the difference in circumstances today, such that fleeing is not only not the desired option, but may be illegal or unethical, and is certainly unwise?

Takeaways:

—Fundamentally, the Gemara in Bava Kamma is surely right that, in response to this pandemic, we have an obligation to stay in our homes as much as possible. Consequently, society has an obligation to make sure we can stay in our homes—eviction or relocation in the time of a pandemic are thus terrible policy options.

—Thus, cancellation of the rental contract becomes a far less attractive option for the tenant (and for the society!). Thus, given the ambiguity that exists in the sources between options involving cancelling the contract and those which involve adjusting the rent, we think sources like the Magen Avraham—and more basically, Torah obligations to preserve one’s own life and health as well as that of others—push us toward thinking that cancellation or reduction of rent seems more practical and in keeping with the tradition.

—Second, we think that one has to read earlier sources with the Shlah and the Magen Avraham’s assumption in mind (since it’s not just theirs—it’s all over the literature). This means reckoning with the fact that the legal authorities in those cases are assuming people want and need to flee and not playing out the dynamics of “what if they remain?” An important reason cancelling the contract—and not modifying the rent—becomes a preferred solution is that renters flee plagues.

IV. How Do We Rebuild?

Our learning began with the idea of the renter being caught in between two realities: half-free and half-enslaved. We wanted to end this learning with a reminder about the work we are obligated to do, so that everyone, everywhere is housed and safe. The COVID-19 pandemic, compounded with the already serious housing crisis, has put renters in a situation where they fear eviction and homelessness.

This poem by Erez Bitton, Israel’s “founding father” of Mizrachi Poetry, describes a home that is envisioned from within the ruins. The father remains at the threshold of this imagined house but the son is compelled to continue to build scaffolding:

Questions:

-What kind of home is imagined in this poem? What components make up this home?

-What roles do the father and son play in erecting this home?

-In what role do you see yourself in the fight for affordable housing? How has this learning informed your opinions and ideas about rent cancellation in this time of crisis?

We hope that this learning has provided some scaffolding for thinking about the issue of rent reduction and cancellation during the COVID crisis. As we move forward from this threshold, we encourage learners to look for ways to make a difference in this fight so that all people have the security of a roof over their heads. To learn more about rental laws, policies and proposed bills in your community and to get involved, please visit the websites below to see how you can help:

The National Low Income Housing Initiative

ACCE-The Alliance of Californians for Community Empowerment

Housing Justice for All

Urban Habitat

Right to the City Alliance 

Emergency Rent and Mortgage Cancellation Legislation/ Ilhan Omar (MN)

Guidelines:

—Renters are an unprotected, exploited population: As the Gerer Rebbe indicated, seeing renters as half-slave/half free is an important prism through which to think about our question of what to do about rent during this crisis. We have the responsibility to empathize and understand the precarious situation renters are in and fight to change this unjust situation. We support the passage of laws that decrease or cancel rent for renters during and after this crisis. We don’t want renters to come out the other end of the pandemic with large amounts of debt. We want communities to see renters and hear their voices. Patricia Mendoza is not alone.

—Landlords are not necessarily entitled to their full monthly rents. Rent reduction, for the sources we saw above, is a right renters have. While we certainly think that it's important to avoid evictions, and Jewish law lands where it does in part because of the ethical instincts that animate the Gerer Rebbe, it's important to note that the case we are making is that a major portion of the residential (and commercial) rents currently due according to American law do not morally belong to the landlords, they belong to the renters. If this is so, then the halakhic principle of "One who comes to take from someone else bears the burden of proof" (B. Talmud Bava Kamma 46n) indicates that tenants have a prima facie (i.e., presumptive) claim not to pay rent. Of course, the details of the policy are complex, and we certainly support some rental support for those landlords who are in genuine need and are deserving. The details of how to structure that policy are beyond the purview of this document. But the fundamental point is: according to Jewish sources, rent cancellation is a matter of rights. 

—Laws can and should protect renters: Jewish law places constraints on the landlord’s right to evict, and the sources we have explored indicate this by showing that a situation in which a tenant can be evicted at a moment’s notice is unacceptable. All tenants deserve the security of knowing that they cannot be pushed out at the end of any thirty-day interval. While the legislation signed into law in California by Gavin Newsom addresses the issue of current eviction for people that cannot pay their rent, we believe that protections need to be added so that renters and small landlords don’t accrue large amounts of debt on the other end of this crisis.

—How can I take action? We want macro change for this housing crisis. We want lawmakers, communities and local, state and federal governments to recognize that housing as a basic human right and to make housing affordable for all. If you live in a community that has enacted moratoriums on evictions, continue to support organizations that advocate for affordable housing and tenant rights. If you live in a community where this is not the case and you know of people who are struggling to pay their rent, consider giving tzedakah in this situation by supporting individuals you know or organizations like the COVID-19 Eviction Defense Project.

—Finally, we must have a larger, longer-term collective conversation about housing, one that builds on the insights of, for instance, Erez Bitton's poem—and consequently recognizes that, while a home is a sacred, longed-for place, our society and economy have not done a good job ensuring everyone good, stable, affordable housing. The acute crisis of the pandemic, we suggest, has revealed the fundamental crisis of our housing system—a crisis measurable in the statistics in our introduction and felt in the pain of individual renters.

Footnotes

1 We would like to thank, for their advice and expertise, our consultants: Rabbi Aviva Richman, Tony Roshan Samara, Julie Gilgoff, and Rabbi Aryeh Cohen. We would also like to thank T’ruah for supporting this project, and particularly Shani Rosenbaum, for her skillful, wise management. Raffi would also like to thank Leslie Gordon, who has taught him a great deal about renters and many other things, and a group of friends (Hannah, Avi, Carissa, and Noam) with whom he learned some of these sources. Tamar would like to thank Haya Ne’eman, HaRav Isaac Chouraqui and Eli Bareket from Kol Yisrael Chaverim in Israel. Obviously our errors are ours alone.

2 One framework for how to think about this usage would be Drashot haRan #11.

3 As a preliminary example, it’s striking that when San Jose considered cancelling rent, the city attorney ruled immediately that such cancellation would be an unconstitutional violation of property rights. Of course, as the Law Foundation of Silicon Valley argues, that challenge may well be wrong about American law—we hope so! But note that it wouldn’t even really get off the ground in Jewish law, which has never held private-property rights to be a sacred meta-principle.

4 The term “collective disaster” (makkat medinah) also appears in mBava Kamma 10:5 and tBava Batra 6:11 (Lieberman), though neither is particularly relevant for our case. Our Mishnah’s basic ruling is codified, with some modifications as discussed in the Gemara ad loc, in Mishnah Torah Hilkhot Skhirut 8:5 and Shulkhan Arukh Hoshen Mishpat 321. 

5 The Venice edition of the Yerusalmi here reads נשרפה (“burnt”). Obviously the ד and ר are easily confusable, and lex difficilior —the rule of reading manuscripts according to which smoother readings are often later emendations, and harder readings are thus often earlier— suggests that the less common נִשְׁדְּפָה is likely correct.

6 There is some argument about this in the later sources (see especially the Shu''t Maharam Padua #39, who rules that deduction is only retrospective, an opinion brought but rejected by the Rema in Hoshen Mishpat 321). The simple reading would be that the Mishnah is talking about both the rent that’s already been paid and future rent. (Or alternatively, it is imagining agricultural rent paid as a lump sum at the end of the season. The commentators generally insist that the Mishnah is talking about a rent that is fixed and not a percentage of the crop—see, for instance, the Tiferet Yisrael (Yakhin) ad loc, as well as the Maggid Mishnah on Hilkhot Skhirut 8:5. This follows from Rav Papa’s statement on bBM 105b and Rashi’s comment there, though it does strain the simple sense of “m’kabel” in the mishnah, and the wording of Rambam’s Perush haMishnayot ad loc is ambiguous.)

7 There is a sizeable body of material on this question, much of it springing from a Mordekhai on Perek HaOmnin (Mordekhai on Bava Metzia, 343) which states that, in a case where a teacher is prevented from teaching because of a collective disaster, the loss falls on the employer (in this case the father) and not the employee (the teacher). A great amount of ink has been spilled on the apparent contradiction between this Mordekhai and our Mishnah: since formally speaking, an employer rents an employee’s labor, one might analogize the employer to the renter in the Mishnah and the employee to the landlord. See e.g. the dispute recorded in the Rema to SA HM 321:1, pitting the Maharam Padua (#39) against the Mordekhai. There is a tangled history of this analogy which extends beyond our purposes here, but we do think it important to note the argument of the Levush Ir Shushan (quoted in the responsa of Rabeinu Hayyim Cohen HM 19) that there is no conflict between the Mordekhai and the Mishnah, because the employer is analogous to the landlord and the teacher to the renter. (The child, in this analogy, becomes the field.) The Levush Ir Shushan is surely right that the Mordekhai would not have meant to contradict the Mishnah, and he also gives a powerful account of how to understand responsibility in a case of collective disaster as falling on the structurally advantaged party, rather than as being decided formalistically based on who is the payer and who the payee. We stress this point because otherwise, analogies between renter-landlord and worker-employer cases of collective disaster may seem to imply a trade-off between renters’ rights and worker’s—a tradeoff evident in many of the responsa, but one which we think Rabeinu Hayyim Cohen helps dispel.

8 The concept of the idle worker is a complex Talmudic concept in its own right: see Bavli Bava Metzia 68b and the three-way dispute between Rashi, Tosafot, and Rabeinu Chananel there.

9 To see the opinions on the other side, see Levin, 83-84n140.

10 See for instance the Shu’’t Maharam Padua #86, which insists that whether a plague is a collective disaster can be determined by how many people fled it.
10a In private communication, Rabbi Elli Fischer wrote us the following very helpful summary of some of the history of this point: “I would add here that R. Asher Weiss, by questioning the practice of fleeing COVID-19 (since the beginning of the outbreak… has counseled the literal application of Bava Kamma 60a-b, which was never before observed in practice - see the forthcoming article: Moshe Dovid Chechick and Tamara Morsel Eisenberg, “Plague, Practice, and Prescriptive Text: Jewish Traditions on Fleeing Afflicted Cities in Early Modern Ashkenaz,” Journal of Law, Religion, and State)... Late medieval and early modern Sephardic halakhists never flagged the practice of fleeing as problematic or raised the problem that Bava Kamma 60a-b presents for that practice. See: Beit Yosef, Ḥoshen Mishpat §344; Responsa Nivḥar Mi-Kesef, Even Ha-Ezer 63; Responsa Ḥut Ha-Meshulash (Tashbetz) 4:3:23; Responsa Yakhin U-Bo’az 2:53; Responsa Maharitatz §§44 and 51.”