Question :
What is the halacha pertaining to ribbis when it comes to real estate?
Answer:
Rentals of Real Estate:
It is permitted to stipulate two prices for rent, one for immediate payment and a higher rate for paying at the end. The reason is that since one is only obligated to pay rent at the end, paying at the beginning at a discount isn’t the real price and is permitted. However, many hold that nowadays this leniency won’t apply since the practice in many places is to have the rent due from the beginning of the month or rental period. If so, it would be forbidden to have a two tiered system for the price of rent. The Torat Ribbis 14:7 writes that if in a certain place it is assumed that rent is due at the beginning of the rental and not the end, the Chachmas Adam 136:10 forbids offering two prices for rent. His reason is that once the rent is due immediately it is considered a sale and offering a more expensive price later is forbidden. He also quotes that the Machaneh Efraim 31 writes that it is permitted since essentially it is due at the end but the practice is just to have a condition to pay it up front it is no different than in the days of the Gemora. Torat Ribbis himself adds a leniency if it is clear that the price for the payment at the end is the fair market price and the earlier price is a discount that it could be permitted based on the Chachmas Adam 139:5.
Even when or where it is permitted to charge extra for rent it is only permitted when stipulated in advance of the renter beginning to rent. It can not be stipulated once he already began his rental period and certainly not after the rental period has finished. The Shulchan Aruch Y.D. 176:6. Taz 176:8 ventures that this is biblical interest even according to the Beis Yosef since the obligation to pay after the rental period is halachically considered a loan. Shach in Nekudat Hakesef 176:3 disagrees and thinks that the Beis Yosef’s unresolved quandary is still relevant since the obligation was generated by a rental. The Chelkas Binyamin 176:67 cites both the Shach and Taz. He adds that there’s an additional reason to assume it is rabbinic; according to the Rambam (cited in 166:2) all interest that isn’t obligated from the time of the loan is rabbinic.
When and where it is permitted to have a two tiered rent system it is even permitted when the renter makes this stipulation and payment significantly before he begins the rental. The Beis Yosef 176:6 quotes the Hagahos Maimoniyot in the name of the Baalei Hatosfot Rashba says that it is forbidden to have a two tiered system when the renter doesn’t start immediately upon agreement of the rent. Doing so would appear as interest since it appears as though the payment is a loan in order for the owner to offer a discount. Yet, the Maggid Mishna cites the Rashba, Rav Shlomo Ben Aderet, as being lenient since the acquisition of the rental is complete once the rental price is finalized. That acquisition makes it a real rental and not a loan even from the moment of the agreement. Chelkas Binyamin (Tziyunim 176:167 and Biurim) clarifies that this means that the acquisition for the rental acquires him the house with respect to being able to live there when the rental will begin (unlike the Nekudat Hakesef 176:1 who implies that it means that it is completely in the possession of the renter immediately). Nekudat Hakesef 176:1 follows the Rashba, Rav Shlomo Ben Aderet.
If a person is renting a field for work for a certain price and also offers the renter a loan in order to invest in the field itself, they can arrange that the rental price will be higher because of this loan. This is only permitted even after the rental begins before the rental is due. The Gemora Bava Metzia 69b, Tur and Shulchan Aruch Y.D. 176:5. Baal Hatrumot 46:4:48 cited by Beis Yosef 176:5 quotes Rabbenu Moshe who says that it is forbidden to have the renter pay back the loan as well as the higher rent. Rather he should pay for the higher rent and not the capital of the loan. Beis Yosef comments that this Rabbenu Moshe isn’t the Rambam who makes no mention of this qualification. Indeed, the Chelkas Binyamin (176 fnt. 134) notes that the Shulchan Aruch and commentaries don’t make this qualification either and as such we don’t follow it. |