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The Avodah Blog

Housing is a Civil Right: D’var Torah for Parashat Re’eh

Last week, we probed the Torah’s preemptive disgust at wealth hoarding, class entitlement, and civic irresponsibility, which crouched at the threshold of the Land of Israel, ready to seduce the Israelites as soon as they became securely housed landowners and stewards. This week, the Torah implements legal structures to ward off such wealth disparity. Whereas in Leviticus 25, the focus of the laws of the Sabbatical year was on ecological harmony, with the land observing a Shabbat of rest, here, in Deuteronomy, the focus is on economic equity: “Every seventh year you shall make a remission. This is the matter of the remission: every creditor who holds a loan against their comrade, shall remit; they shall not demand of their his comrade or kin, for the remission proclaimed is for YHWH” (Devarim/Deuteronomy 15:1-2). The Torah quickly makes explicit the goal of this policy: “there shall be no pauper among you” (ibid., 4). The Torah’s goal is the elimination of poverty. The Torah knows that major legislative structures do not solve all problems, though; if loans are to be forgiven, maybe rich people will simply stop lending and people struggling financially will have no pathway to financial recovery. “Should there be a pauper among you, from one of your kin, within one of your gates in the land that YHWH your God is about to give to you, do not harden your heart nor clench your hand against your kin, the pauper. Rather, open — yes open — your hand to them, and lend — yes, lend — to them enough for their lack, whatever is lacking for them” (ibid., 7-8). The Torah speaks to comfortable people here: always lend, even though you may not recoup it, and lend for whatever people lack. Before we continue, stop and think for a minute: what do people need? What counts as a lack and what is “enough for their lack/דֵּי מַחְסֹרוֹ”? Who determines it? How should a government regulate provision of needs?

The Rabbis operationalize this question with regard to people in a social category most likely to lack access to financial support at a time when costs are heaviest, thereby declaring that it is not just individuals liable for the the laws of our parasha, but it is, at least sometimes, the state’s responsibility to make the terms and goals of Torah law a reality (Talmud Bavli, Ketubot 67b, based on Tosefta Ketubot 6:8): 

“An orphan who comes forward to be married: A house is rented for him, and a bed and all his furniture are arranged for him, and after that, we marry him to a wife, as is said, “enough for his lack, whatever is lacking for him” (Deut. 15:8): ‘Enough for their lack’ — this is a house; ‘whatever is lacking’ — this is a bed and table; ‘for him’ — this is a wife, and so does it say: ‘I will make for him a sustainer, alongside him’ (Bereishit/Genesis 2:18).” For the Rabbis, human needs which the state is obligated to provide, include, at the least, furnished housing and stable relationships of care and support. Housing is at the root of this analysis: the midrashic definition of “enough for their lack” is housing. The Torah requires us to keep everyone housed; housing is a civil right.

This law does not just apply to providing housing to those who lack it, but making sure that when people are financially struggling, that they do not lose their homes. The Mishna (Pe’ah 8:8) legislates the poverty line, ie, the amount of assets below which a person is eligible to collect welfare. The Mishna sets that line at 200 Zuz; while historians struggle to estimate the assumed value of this amount of money, because economic disruptions changed the value over time, the most standard Rabbinic estimation, by the Or Zarua‘ (Rav Yitzhak ben Moshe, c. 1200-c.1270, Vienna; Or Zarua‘ I, Laws of Tzedakah 14), quantifies this poverty line as enough money for food and clothing for a year for a married couple. The Mishna clarifies that this poverty line describes liquid assets, money actually available for spending on household needs: property that is mortgaged as a lien to a creditor, or committed to a marriage insurance contract (ketubah) does not count as assets for this purpose. You don’t fully own anything that a debtor might come to collect from you tomorrow. Finally, the Mishna stipulates that housing does not count against one’s assets: “They are not obligated to sell their house or practical goods.” If the goal is to get struggling people back on their feet, so that “there shall be no pauper among you”, we have to keep people housed. If you lack access to liquid capital for a year’s worth of household necessities, you may collect public assistance; if you have stable housing, great! You’re more likely to be able to get stably on your feet via public aid. Housing is a civil right.

What about renters? What is Torah and Rabbinic policy for how to keep renters stably housed? The Mishna (Bava Metzia‘ 8:7-9) legislates that landlords are required by law to provide “the door, the bolt, the lock, and anything which is the work of an artisan”, ie any feature of a home that a civilian could not keep up on their own. The Talmud (Bava Metzia‘ 101b) adds other details indicating that the landlord is obligated to maintain and pay for all structural elements of the home. If the home collapses, the Mishna teaches that the landlord must rebuild it as the same sort of housing as it was at the beginning of the lease: a landlord may not neglect a unit until it collapses and then rebuild a bigger or smaller unit that would be ill-fitting this tenant’s needs, in order to push them out and squeeze higher rent out of someone else. 

Moreover, a landlord’s rights to evict are severely curtailed. If a lease has unspecified duration, then during the summer months, a landlord must give 30 days’ notice and during the winter half of the year, the landlord may not evict a tenant at all, as the Rambam (1135-1204, Egypt & Spain) summarizes Rabbinic law: “One who rents a house to another without specification may not evict them without notifying them thirty days in advance, so as to enable them to find a place and not be thrown into the street, and at the end of those thirty, they must leave. When does this apply? In the summer, but during the rainy season, they may not evict them at all, from Sukkot until Pesach” (Mishneh Torah, Laws of Renting 6:7). As a matter of applied law, later authorities adapt the Talmudic principles to their own settings, expansively protecting tenants from evictions. The rabbinic court in Meknes, Morocco, decreed that any lease, even a short-term rental, such as a month-to-month, shall be considered as a 12-month rental for the purposes of housing security: “We have agreed, and set forth a ruling, that whoever rents an apartment from this day onward, the owner shall not be able to make the renter leave it for a whole year. The year will start in the [spring] month of Iyar, and end in the month of Iyar, and the owner will not be able to make this person leave at all throughout this time. And the owner shall not increase the amount of rent due, and the only time that the amount could be raised is in the month of Iyar specifically. And even if the owner should make an agreement with the person renting the apartment to let him live there for six months, the owner still does not have the right to make him leave without his will before the month of Iyar. And we shall keep this ruling as our custom here for all generations to come” (cited in Rabbi Prof. Moshe Amar, Sefer Takanot, the Sages of Meknes, Morocco: 1996, as brought in Raphael Magarik and Tamar Zaken, “Are We In This Together? Rent Cancellation and COVID 19”.)

Not only that, but it is actually a matter of controversy in halakha whether non-payment of rent is a legal ground for eviction. Most opinions rule that it is, but it is not unanimous or settled. The Ritba (Seville, Spain, c. 1260-1330) takes for granted that if a parent rented a house and died, the children or other inheritors may use the property for the entirety of the rental and are not obligated in the rent, since the parent does bequeath property (eg the rental home for that period of time), but does not bequeath to them the financial responsibility for those possessions (Ritba, comment to Talmud Bavli, Ketubot 34b). Rabbi Akiva Eiger (1761-1837, Posen, Poland), while balking at Ritba’s ruling, explains his legal rationale as follows: “immediately when their father rented, he took on a monetary debt, and he acquired the usage-right. And the inheritors can say, ‘Our father died, and we inherit the usage-right, but we won’t pay his debt.’ And it’s like one who bought moveable objects and didn’t give the money; the heirs get the objects but don’t pay the debt. Here, too, temporary rental is like a purchase” (comment to Shu”A, HM 341:3). Contemporary halakhic writer Rabbi Baruch Meir Levin, explains, “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” (Landlord and Tenant in Halacha [2019], p. 83, n140). Dr. Raphael Magarik and Tamar Zaken explain further in their 2020 T’ruah guide to rent cancellation and COVID-19:

“In American law, there is a parallel distinction between debt that is evictable and consumer debt. That is, if you happen, independently, to owe your landlord money (say you bought a car from them and never paid), that is typically not evictable….The point…is that it is not so clear that Jewish law regards rental payments as evictable. You may owe the landlord money, and they can take you to a court and claim it. But they cannot necessarily evict you.” Rent may just be consumer debt, but not a prerequisite for staying in one’s home.

Granted, the Ritba’s position is not the majority view; nevertheless, there is precedent for Rabbinic courts ruling practically that a landlord may not evict a tenant for non-payment of rent. Magarik and Zaken cite a case, brought in Levin’s book, of Rabbi Yitzchak Meir Rotenberg-Alter (1799-1866, Poland, the first Rebbe of the Ger Hasidic dynasty), who ruled against a wealthy landlord who tried to evict a tenant for non-payment of rent. The Gerer Rebbe compared the cash-strapped renter to the Mishna’s case (Gittin 4:5) of a person who is “half enslaved and half free”, and therefore eligible to marry neither an enslaved nor a free person, whom the slaver is obligated to free: Reasoned the Gerer Rebbe: “one might ask, ‘Why is his master obligated to take all the loss? Let the enslaved man go and gather contributions to redeem himself!’ Rather, you must say that since the enslaved man fell into the portion of the master, it’s on him to absorb the loss. And also here, since he’s your renter, it’s on you to bear this.” 

“‘Half-slave, half-free,’” Magarik and Zaken write, “is a beautiful way of talking about what it is to be a renter in the contemporary world: you can theoretically move anywhere, but anywhere you go, the yoke of rent is on you. The market promises choice but delivers exploitation. You live in the space in between what you can earn and what you’re obliged to pay, and at the end of the year, someone else has accumulated the money you’ve spent on housing.” Unpacking the logic of a 2020 legal responsum by Rav Asher Weiss that apartment renters in Israel were entitled to rent reductions when they left Israel during the COVID pandemic to return to their overseas home of origin, and were then unable to return to Israel for a long time, Magarik and Zaken bring home the legal implications of this rabbinic attitude to the landlord-tenant relationship: 

“[F]undamentally, we think that low-income renters who are remaining in their apartments but can no longer access their jobs are deprived of a significant, basic benefit from their rentals. On the level of svara (common sense), the economic reason most workers rent apartments in expensive places (e.g. the Bay area, New York, Chicago, etc.) rather than cheap ones (much of the country) is because those rentals afford them access to job markets with better wages. The heightened demand for apartments in expensive places, and thus the prices renters pay, is based on the presumption of access to jobs. Part of the point, in our opinion, is that one cannot cleanly divide between ‘residential’ and ‘commercial’ renters, since economically, low-wage workers have to rent apartments to access jobs. And thus realistically, one ought to disaggregate the benefits such workers typically receive, and if workers cannot work en masse, to reduce the rent.”

I’d like to close with a story about a 2nd Century Sage which reminds us of the emotional response to homelessness animating these laws protecting housing as a civil right, an emotional response which we should strive to hold onto, even as our dystopian state tries to dull us: “Rabbi Yehoshua‘ ben Hanania went to Rome and there he saw pillars of marble covered with thick blankets, so that they would not crack in the heat nor freeze in the cold. When he went outside, he ran into a poor person, with a thin reed mat beneath him and a thin reed mat on top of him. About the pillars, he read the verse, ‘Your beneficence is like the high mountains’ (Psalms 36:7), saying, ‘When You give, You give with abundance’. About the poor person, he read the verse, ‘Your judgments are the great deep’ (ibid.), saying, ‘When You beat down, You are exacting’” (Midrash VaYikra Rabbah 27:1). The sight of an unhoused human being lacking basic protection in a city so wealthy as to spend lavishly on climate control for buildings is a shocking, appalling sight, something that merits speaking in an, ominous, mythic, Biblical register. Homelessness is theologically challenging, forcing us to upend the meaning of Biblical poetry about God’s vast justice to describe, instead, God’s cruelty, as we name the horrific cruelties of God’s world. Homelessness is something that is associated with Rome, an evil empire, an occupier that murders Sages and dissidents. As long as there is any pauper in the land, as long as anyone lacks basic needs, as long as anyone is unhoused, we must experience that horror and translate it urgently into law. Housing a civil right.

Shabbat shalom.

To learn more, see Rabbi Jill Jacobs, There Shall be No Needy: Pursuing Social Justice Through Jewish Law & Tradition (Jewish Lights, 2009) and Rabbi Aryeh Cohen, Justice in the City: An Argument from the Sources of Rabbinic Judaism (Academic Studies Press, 2011).

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