From time to time, apartment landlords encounter a tenant (a tenant who is not protected) who refuses to leave the apartment at the end of the rental period, or who evades paying the rent, thereby fundamentally violating the agreement, but refuses to vacate the apartment.
This is a particularly ugly phenomenon, which can cause significant damage to apartment owners in various aspects: Sometimes, apartment owners rely on regular rent payments for their mortgage payments, and when these do not arrive, they enter a financial and economic spiral. In other cases, apartment owners seek to use the apartment differently, such as selling it to a third party or even living in it themselves. Lack of cooperation on the part of the tenant and his holding on to the apartment in violation of the terms of the agreement can lead to significant chain reactions, such as a breach of a sales agreement - if the apartment owner entered into an agreement to sell it, or the lack of housing for the apartment owner, as well as other additional consequences.
Is it possible to enter an apartment by force and evict the tenant??
According to Section 18 of the Land Law, self-incrimination and even the use of force to a reasonable extent is permitted in order to prevent another person from trespassing on his land, provided that this is done within 30 days of the date of entry into the land - something known as "fresh trespass.".
As a general rule, even in cases of "fresh encroachment," there is a significant priority to use law enforcement agencies. The police are expected to assist citizens who complain about a "fresh encroachment" on their property, and assistance is usually provided as a matter of routine.
However, the courts interpret this section narrowly, when it concerns a property whose possession by the tenant began by agreement between the parties, even if the requested eviction is carried out within 30 days of the date of commencement of possession.
In any case, an event of eviction of a reluctant tenant generally does not occur within 30 days of his entry into the rented property, so in any case the landlord cannot find his remedy in Section 18 of the Real Estate Law.
Sometimes, rental agreements drafted by apartment owners contain various clauses that explicitly state that the tenant agrees, under certain circumstances, to the landlord's own remedies, such as forcibly evicting the apartment and replacing the apartment's locks, as well as disconnecting essential systems in the apartment such as the electricity, water, and gas systems, as a "fresh invasion." Tenants sign these clauses in the agreement, sometimes along with additional clauses (as the lawyers imagine) that prohibit the tenant from going to court in such cases or clauses that explicitly waive claims against the landlord. Ostensibly, the tenant's prior and informed consent to these remedies exists and therefore they are binding on the tenant, however, the courts completely deny the contractual validity of the clauses of the contract that allow the landlord to take his own remedies, as they are contrary to public policy and public order.
So what do we do against the recalcitrant tenant?
Aware of the distress of apartment owners and the expansion of the phenomenon, especially during periods of economic hardship, the Minister of Justice amended the Civil Procedure Regulations in 2008, adding the possibility of filing a lawsuit titled "Lawsuit for Eviction of a Leased Property." Expedited procedures were established for filing pleadings and affidavits, with the courts having to set a hearing date no later than 30 days from the date of filing the last pleading.
It was further determined, contrary to the usual legal rule that states that the legal hearing will apply to all remedies arising from the issue in dispute, that it is possible (and even recommended) to separate the hearing on the eviction of the leased property from the hearing on the parties' financial claims, as their binding could lead to the hearings lasting longer than desired.
This also provides a possible solution for those who are careful to litigate according to Torah law. Many courts allow litigants to apply to civil courts for urgent temporary remedies, such as seizure orders (to prevent the smuggling of assets) and restraining orders. Here it is appropriate to say that there may be a place to classify the remedy of eviction of the rented property as an "urgent temporary remedy," and to allow recourse to the courts for it, and since the financial remedy is severable, to discuss this remedy in court.
I received a verdict at a good time - what do we do now??
The next step is to contact the Enforcement Office, since even after the judgment has been issued, the apartment owner is prohibited from enforcing it himself. The legislator also amended the Enforcement Law accordingly and set rapid schedules for sending the warning to the debtor, for his response, and for the actual execution of the eviction by the Enforcement Office.
This way, you can request the opening of a case at the Enforcement Office within just 15 days of the date of the judgment, rather than the usual 30 days. After that, a warning is sent to the debtor, stating that he must comply with the judgment within the period set by the Enforcement Registrar. This period is usually about 20 days.
If the tenant persists in refusing to vacate the apartment, the Enforcement Bureau is obligated to carry out the eviction within only 14 days of the end of the period specified in the warning.
Although the period from the date the lawsuit is filed to the actual eviction is several months, relative to legal proceedings, this is a very fast schedule.
How can the phenomenon of the reluctant tenant be reduced?
First, it is recommended to inquire about the potential tenant's finances, examine their sources of income, and their ability to meet their obligations. This, of course, does not guarantee that they will fulfill their obligations, but caution is in order and appropriate.
In addition, when drafting the rental agreement, it is highly recommended to ensure that the tenant complies with his obligations by requiring him, as a condition of signing the agreement, to provide at least 2 guarantors who will be guarantors for the tenant's obligations to be fulfilled on time. A reluctant tenant is usually also a tenant without adequate financial means. A letter of warning of legal proceedings for rental obligations and the demand for eviction, sent by a lawyer and addressed to the tenant and to normative guarantors who are close to the reluctant tenant, may in many cases lead to the cessation of the refusal and an arrangement between the parties without additional legal proceedings, since legal proceedings create additional financial charges that will also apply to the guarantors.
Therefore, it is recommended to carefully verify the identity of the guarantors and even check their financial ability to fulfill the tenant's obligations.
In addition, it is highly advisable for the tenant and the guarantors to sign a promissory note, which will be denominated in a significant amount of money, to which the parties can commit, so that in appropriate cases it can also be realized through the guarantors.
Thus, the guarantors of the agreement serve the landlord as a lever of pressure on the tenant to fulfill his obligations on time.
In conclusion, we can say that sometimes, despite all the precautions taken and despite the reservations and the multitude of clauses, there is no way to unequivocally guarantee the elimination of the phenomenon called "reluctant tenant". The property owners are responsible for insuring themselves to the maximum extent possible, it is recommended to hire the services of a lawyer who specializes in the field and thus try to reduce the chances of the case occurring. It should be remembered that even if, God forbid, your path crosses that of a reluctant tenant, you must act within the framework of the law as quickly as possible so that the issue is concluded as soon as possible and the damage caused to you is minimized as much as possible.
The lawyer Erez Ben-David From the office Wolfson Weinstein & Co.', Specializes in the field Real estate law and TAMA 38 transactions.
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