Friday, November 27th, 2020

The Uncertain Future of the Jerusalem Real Estate and Hotel Industry by Gidon Rothstein

April 17, 2011 by  
Filed under New Posts

Jerusalem real estate today is fairly expensive, but viewed in the long term, that investment is not necessarily as good as it seems. For the hotel industry, it might be even worse. 

The issue lies in an halachah discussed in the Tosefta and Avot de-Rabbi Natan (Version A, Chapter 39), where one of the ways Jerusalem is distinguished from other cities is that renting sleeping space is forbidden. As the Gemara notes in both Yoma 12a and Megillah 26a, this halachah depends on a larger question, whether Jerusalem was split among the tribes, with Binyamin taking one part and Yehudah another (meeting at the מקום המקדש, the Temple site) or was never divided, left as a national treasure, belonging to all.

Rambam rules the latter, which has other ramifications, such as that houses in Jerusalem cannot become subject to נגעים, the stains and blemishes that could lead to the need to destroy the house.  Included in that, though, is the assumption that living and sleeping space could not be rented, it belonged to all.

That that produced less than ideal living conditions is freely acknowledged in at least two responsa. The Gemara offers evidence that hosts weren’t always so pleased about this arrangement, leading to the Sages allowing them to take the hides of sacrifices by force. Abbaye notes it was the general polite custom to leave that for any host, which explains, according to Ritva, how the Sages would decide to make it an enforceable expectation (since Jerusalem hosts weren’t getting anything else).

Not So Much Fun for the Hosts

In responsa more than a century apart, Hatam Sofer and R. Meshulam Rath give a sense of just how unpleasant this could be.  Discussing different parts of the same Mishnah in Ketubbot, Hatam Sofer’s questioner wondered at a reference to parts of Jerusalem as being a נוה הרעה, a bad place to live.  Hatam Sofer, 2 (Yoreh Deah);234, notes that it was because of non-residents’ right to simply come to a random house and take living space (that might also explain why some parts of the city would be worse than others, because areas closer to the Temple would probably be in more demand).

Hatam Sofer uses this idea to explain a verse in Nehemiah that speaks of the general populace blessing those who volunteered to live in Jerusalem (in Nehemiah’s time, the city was underpopulated, much as some residents say it is during non-holiday times today); Rashi ascribes it to the general crowdedness of city life as compared to country life, and Hatam Sofer suggests the possibility of being invaded by tourists added to that.

In Responsa Kol Mevaser 1;26, R. Rath uses this same thinking to explain why Ketubbot 110b refers to this verse as only a help to the opinion of R. Yose b. Hanina, that living in cities is difficult. As R. Rath notes, if the verse means what Rashi says, does that not prove city living is harder than country living? The answer is that it would have been possible to argue that living in Jerusalem had special challenges, the vulnerability of unwanted visitors.

Mitigating the Problem

One way to respond to this information is to dismiss it, to claim that when the Temple is rebuilt, the whole issue of land and property will be so altered it does not pay to consider it. Support for this position comes from the end of the book of Yehezkel, whose vision sees a radical re-division of the Land, with the area around the Temple (and, depending on your reading of his measurements, possibly miles around the Temple) given to the priests, the Levites, and only then a section for ordinary Jews.  In that section, however, it might still be true that hotels could not charge for sleeping space, possibly not for bedding, would have to try to make it up in incidentals like food.

Another suggestion is that of Ritva in Yoma, who assumes the whole reference to not renting houses is only for those who are coming on the three major holidays, fulfilling the obligation to appear before God on those special days. If so, the hotel industry could thrive at other times, but the holidays would be off limits for charging for lodging.

Perhaps the most workable option for those committed to the hospitality industry, though, is raised by R. Yerucham Fischel Perle in his discussions of R. Saadya Gaon’s Book of Mitzvot.  In the course of discussing whether the obligation to bring an eglah arufah– the ceremony of the breaking a heifer’s neck to atone for having failed to protect a murder victim whose assailant is unknown– applies even to victims found within cities or only between them—R. Perle wonders about a question of direct relevance to our discussion: if we add on to the city of Jerusalem, do the halachot that apply to the original city apply to the added parts as well?

In asking the question, R. Perle already gives a boost to most existing hotels, since, halachically, they are not part of Jerusalem.  Adding to the city, I note, involves an halachic ceremony that cannot occur until the return of several missing institutions, such as a king, a prophet, the Urim ve-Tumim, and the Sanhedrin (see Rambam Hilchot Beit haBechira 6;11), so that hoteliers are safe for awhile at least.

On the larger question, though, R. Perle is inconclusive, suggesting that if a future king decides to formally add the newer neighborhoods to the original city, a whole industry could be in jeopardy.

For this Pesach, though, they would seem to be safe.

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