We cannot get into “Choshen
Mishpat” questions of when a landlord can remove a tenant from rental
property (see Shulchan Aruch, CM 312). Rather, we will deal with the “Orach
Chayim” questions of closing down a shul, assuming that you otherwise
would be permitted to end the rental.
First of all, under certain
circumstances and conditions, one may sell a shul (see Shulchan Aruch,
Orach Chayim 153:6-7). One basic condition is that the decision is made in a
serious manner by community leaders that the step is in the community’s best
interest. In this case, the community wants to keep the shul, so we
must see whether the fact that it is rented rather than owned makes a
difference.
The gemara (Megilla 26a)
cites the Rabbanan’s ruling that the part of town where prayers are held on
public fast days lacks sanctity because praying is done there on an ad hoc
basis. The Beit Yosef (OC 154) cites Mahari Ibn Chaviv as saying that the
batei knesset of his time/place lacked kedusha because they
are expected to be used for a limited time, secretly, until removed by the
authorities. Some (including Shut Chatam Sofer, Yoreh Deah 225, Michtam L’David
OC 5) say that the critical factor in his case is the lack of even short-term
security. However, the Shulchan Aruch (OC 154:2) implies that regarding any
rental, where the congregation’s ongoing use of the premises depends on the
landlord’s agreement, there is no kedusha (see Mishna Berura 154:4).
Distinctions are made, including the duration of the rental (Mishbetzot Zahav
154:1) and whether the rental is for a set time or open-ended (see opinion cited
by Piskei Teshuvot 154:2). However, all seem to agree (see Chatam Sofer, ibid.)
that when the rental period is over, the status of beit knesset ceases.
Poskim assume that no status of beit knesset can prevent a
landlord from legally discontinuing the rental. (Admittedly, some of
the sources relate to non-Jewish landlords, but some discuss Jews (including
Divrei Yatziv, OC 78), and the basic sources do not
distinguish.)
In certain cases, another factor
arguably plays a role. The gemara (Bava Batra 26b) says that a
community may not take down a shul before they secure its replacement.
This is beyond the matter of kedusha, as it applies even if they are
just renovating the shul for future improved use (see Mishna Berura
152:2). Rather, it is a matter of concern that the community, for a short or
possibly a long time (see gemara) will be without a proper beit
knesset. One might have argued that this concern should prevent a landlord
from closing a shul, if there is no proper alternative.
The Mishna Berura (152:3) cites the
opinion of several Acharonim that a community that rents a beit
knesset may not leave the rental before securing a replacement location.
They speak of the permissibility of the community’s steps, not the landlord’s.
One cannot infer that there is no prohibition on the landlord because the
context of this halacha’s primary source (the Eliya Rabba 152:1 in the name of
the Nachalat Shiva) is of a non-Jewish landlord, who obviously has no obligation
to be concerned about batei knesset. Nevertheless, since the community
is obligated to search for alternatives to rental shuls, the concern need not
fall on the landlord. Understand that landlords cannot evict a tenant without
giving sufficient opportunity to find an alternative (Shulchan Aruch, CM 312:5).
Once the community is forewarned, they are obligated to find an alternative,
such as building their own shul (may be preferable) or finding another rental
location.
That
being said, there may be circumstances where at least the spirit of the law
would require giving a community an especially long warning period to ensure
their ability to find an alternative beit knesset.
[Machon Eretz Chemdah]
