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HaRav Yishai Natan –
I rent a two-bedroom basement apartment in Lakewood. My landlord, who lives upstairs, was looking to sell the house. I have two kids and another on the way, be’ezrat Hashem, and my landlord knew that I needed to find a bigger place. He asked me if I wanted to buy the house. This would allow me to move upstairs, where I would have much more space and more bedrooms. However, he was asking an exorbitant amount of money. I knew that no one was going to pay that price, so I told him I’m not interested. The plan was to wait until he lowered the price and then I would negotiate with him and offer to buy it.
Yesterday, I saw him moving out and asked him what was going on. He told me that he had sold the house. He said that he did not get the amount he originally wanted, but he still got a great price. I would have paid that amount if I had known he was willing to accept it, and I am willing to pay that amount now.
Can I remove the new buyer using my rights of bar metzra?[1]
Losing Bar Metzra Rights
If the seller offers to sell the house to a matzran and the matzran turns it down, he loses his rights later when the property is sold.[2] However, this is only if the property is sold for the same price that was offered to the matzran. In your case, the house was sold for less than what was offered to you. Therefore, you would not lose your rights of bar metzra.[3]
Does a Renter Have Bar Metzra Rights?
However, we first have to discuss whether a renter even has the zechut of bar metzra. There is no Gemara that directly discusses whether a renter has the rights of bar metzra. However, the Rishonim discuss this question.
Rambam vs. Rosh
The Rambam rules that there is no din of bar metzra for a renter. The Tur and Bet Yosef understand this to mean that if the property next to the one he rents is sold to someone else, the renter cannot remove the buyer based on bar metzra.[4] The Rosh disagrees and holds that the din of bar metzra does apply to renters.
Maran vs. Rama
Maran, in Shulhan Aruch (Hoshen Mishpat 175:60), rules like the Rambam that a renter does not have the rights of bar metzra. The Rama, however, rules like the Rosh. Therefore, according to Sephardim, a renter would not have the zechut to remove the buyer. According to Ashkenazim, there may be grounds for a renter to pay the buyer and remove him.[5]
More Than a Bar Metzra
However, your case is different from a regular bar metzra. A regular bar metzra owns or occupies property next to the property being sold. In your case, the landlord sold the actual house that you are renting. Maybe Maran would agree in your case that you have rights of bar metzra.
The Gemara (Baba Metzia 68a) discusses a lender who received the borrower’s house as collateral and lives in the house. The Gemara says that the lender has bar metzra rights to buy the house that he is living in as collateral. The Rosh understands this to mean that the lender has full bar metzra rights. Many poskim[6] say that the same halachah applies to someone who is renting a house when the landlord sells that house to someone else. According to their understanding of the Rosh, the renter has even greater rights than a regular matzran and may remove an actual matzran that lives next door, and certainly a regular outside buyer. According to this understanding, you would be able to remove the buyer.
Problems with This Argument
However, there are two major problems with using this argument in your case. First, only the Rama (175:57) follows the opinion of the Rosh. Maran, however, once again, follows the Rambam who does not allow the lender to remove another buyer,[7] and accordingly also rules that when a landlord sells a house in which a renter is living, the renter cannot remove the new buyer (HM 175:63).
Second, even if you could follow the Rosh and Rama, their opinion is clear only in the case of a lender. Their opinion regarding a renter is not as clear. The Rosh never directly discusses the case of a renter. Similarly, the Rama argues on Maran’s ruling regarding a lender, but does not argue when Maran rules that a renter cannot remove a buyer. This looks like her agrees to Maran regarding a renter. Therefore, some poskim[8] hold that there is a difference between a lender and a renter. Only a lender may remove a new buyer, but a renter may not.[9]
Many poskim[10] therefore hold that since there is a safek regarding the opinion of the Rama, and the buyer is the muhzak—meaning that he already has a legal kinyan on the property—he can claim kim li like the poskim who hold that a renter cannot remove him.
Conclusion
Since you are a Sephardi, you do not have bar metzra rights as a renter according to Maran, and therefore you cannot remove the buyer. But even if you were Ashkenazi, since the buyer is the muhzak, he can claim kim li like the poskim who hold that the Rama agrees with Maran that a renter does not have the right to remove the buyer.
In truth, even without these poskim, the Ashkenazi buyer could claim kim li like Maran himself. Although Sephardim generally do not say kim li against Maran, Ashkenazim can generally claim kim li against the Rama.[11]
Bottom line, whether Ashkenazi or Sephardi, you would not be able to remove the buyer.
[1] Bar metzra is a halachah that gives the owner of a neighboring property the first right to purchase land that is being sold. If an outside buyer already purchased the property, the bar metzra may generally pay the buyer what he paid and take over the purchase. Hazal established this because the neighboring property is usually more useful to the neighbor than to an outside buyer.
[2] Shulhan Aruch, Hoshen Mishpat 175:31
[3] In fact, Hazal established the halachah of bar metzra specifically so that the matzran would not have to make an offer beforehand. If he would have to approach the seller first, Hazal were concerned that the seller might raise the price because he knows that the neighbor has a special interest in buying the property and may be willing to pay more. Therefore, Hazal said that the neighbor can remain quiet and allow the property to be sold. Once it is sold, the true market price becomes clear. Hazal view the buyer like an agent for the neighboring owner, helping him acquire the property at its fair price.
[4] They also write that if the renter himself buys that neighboring property, the actual matzran may remove the renter and take the property through his rights of bar metzra.
[5] There is a mahloket about exactly how far the Rama disagrees with Maran. According to the Shach (175:60), the Rama disagrees with both rulings. He holds that a renter may remove an outside buyer, and if the renter himself bought the property, a real matzran cannot remove him. The Sema (175:113), however, understands that the Rama disagrees only with the second ruling. If the renter already bought the property, the matzran cannot remove him. However, the Rama agrees with the first ruling that a renter cannot use his bar metzra rights to remove an outside buyer who already purchased the property. The Taz and Netivot Hamishpat (175:65) explain the reasoning behind this opinion. A renter has only a temporary kinyan in the property. Therefore, it is difficult to say that he should have the power to remove a buyer who now has a permanent kinyan in the property.
[6] Sema (175:116), Netivot Hamishpat (175:67), Shach (175:47), and Bet Yosef.
[7] According to the Bet Yosef’s understanding of the Rambam, when the gemara says that the lender has bar metzra rights, it means only if the lender already bought the house, then the lender has the rights that the actual matzran cannot remove him. However, the lender does not have bar metzra rights to remove anyone who purchased the house.
[8] Rashal, Shach (175:61), and Ba’h Teshuvot (69).
[9] The reason for this difference is that a lender has an actual kinyan in the house as long as the borrower has not paid him back. A renter, however, only has a temporary right to use the property and does not have actual ownership in the house.
[10] Sha’ar Mishpat and Shevut Ya’akov, as brought in Pithei Teshuvah (175:28).
[11] However, the Aruch HaShulhan (175:39) writes that in this particular case one cannot claim kim li like Maran against the Rama. This point itself can be debated.