Question: [Wednesday, 30th Tishrei, 5781]
We have recently sold our home to another Jewish couple but have yet to move out and would like to know if we can take our Mezuzos with us. Our Mezuzos are very expensive, and while I did not think about this aspect of the time of the sale, I would’ve never agreed to have it included in the sale.
My practical advice: My practical advice is to discuss the matter with the buyer and ask them if they need the mezuzah’s that are on the doorpost or if they plan on installing their own [as is the case quite often when the buyer and seller don’t follow the same Nussach of scribal writing, such as Kesav Arizal, versus Beis Yosef, versus Valish, versus Meyuchas]. If they say that they need the Mezuzos, or that they need some of them, then the law follows as written below. If, however, they say that they don’t need them and plan on installing their own, then [although you may not remove them you may] ask them if they are willing to give them back to you after they take them down and install their own mezuzos. Technically, however, they don’t have to agree to this once the sale has a ready taken place and could technically choose to keep your Mezuzos that they took down, as it is included in the sale as explained below. Accordingly, it is understood that all sellers are advised to explicitly include in the sales contract the exact details vis-à-vis the mezuzah’s and if they want to include them in the sale or not.
The law: The Mezuzos belong to the buyer, and you are required to leave these Mezuzos on the doorpost when they receive the home, as the buyer is considered to have bought the rights to whatever mezuzah’s that are on the doorway at the time of purchase and him moving in, and he does not have to pay you for them separately, as they are considered to be included in the sale. However, some Poskim of today rule that so long as the house is still yours [i.e. you are still living in it] you may remove your expensive Mezuzos and switch them for cheap ones, which you will need to purchase for this purpose, as you may not leave the house without Mezuzos on its doors. In my opinion, however, due the secular law which governs such sales to customarily include all fixtures, this opinion should not be relied upon, and the original Mezuzos that are on the doorpost at the time of the completion of sale belong to the buyer and must be left for him.
Looking at the contract: The above ruling, of course, is excluding a case in which an explicit clause was written in the sale contract regarding the Mezuzos, in which case whatever was written and signed upon is binding on both sides. Nonetheless, even if a clause in the contract allows the seller to take his Mezuzos, he must still replace them with cheaper Mezuzos prior to him moving which he can demand reimbursement for from the buyer, or alternatively simply ask the buyer to place his own mezuzah’s on the doorposts, and then given him back his Mezuzos.
Explanation: The above question touches upon two different subjects, which end up becoming co-related and dependent on each other. The first subject is a general subject in the laws of Choshen Mishpat with regards to real estate sales, and as to what is included in the sale of a property, if not explicitly mentioned in the sale contract. The second subject, is a general subject in the laws of Mezuzah, which prohibits a renter from removing his Mezuzos upon him moving, although he may request reimbursement for the mezuzah’s that he left on the doorposts. Now, regarding the laws of what is included in a sale of property, the Michaber rules that all items that are attached to the home, such as doors and locks and a built in oven, are included in the sale unless explicitly excluded in the contract, while all items that are movable and not attached to the home are not included in the sale unless explicitly included in the contract. From this it would appear that the Mezuzos are included in the sale of a home, and rightfully belong to the buyer being included in the payment he made for the home. However, the Rama qualifies the above ruling of the Michaber by stating that the sale only includes items that are attached to the home with cement and the like. However, items that are attached through nails, are not included in the sale. This would come to imply that in truth the Mezuzos are not included in the sale of the home being that they are attached through nails or glue and the like, and therefore rightfully remain under the ownership of the seller. However, the Achronim rule that in truth a mezuzah may be an exception to this rule of the Rama, and be considered included in the sale and under the ownership of the buyer even though it is only attached through nails, due to the second law mentioned above which prohibits a renter from removing his Mezuzos from a home due to danger, and the same applies to a seller. Now, since the seller is prohibited from removing his Mezuzos due to this restriction, we view it as if it is attached to the home with cement and therefore is the property of the buyer. Nonetheless, some Poskim of today question this ruling and qualify it only to mean that the buyer has bought the rights to have Mezuzos left on the door posts when he receives his home, and that he does not have to reimburse the seller for these Mezuzos. However, the buyer does not necessarily hold the rights of ownership to the exact Mezuzos that were on the doorpost at the time of sale, and the seller may choose to switch them for the cheapest Mezuzos that he can find. This itself is based on the allowance for a renter to switch his expensive Mezuzos for cheap ones upon him moving from the home. Nonetheless, in truth, as conclude the above Achronim who were the original writers of this ruling, there is an additional reason for why the Mezuzos of the home rightfully belong to the buyer, which is that the custom and law of our countries is for all attached items to be included in the sale irrelevant if they are attached with cement or nails. Now, according to this reason, it ends up that the original Mezuzos that were on the doorpost at the time of the sale belong to the buyer, irrelevant of how expensive and special they are to the seller, and the seller does not have a right to remove them or switch them for cheaper ones. According to this, prior to answering the question of whom the Mezuzos belong to, one must verify the secular law in one’s country regarding real estate sales. Now, while each person should ask a lawyer in his country regarding this matter, the general rule today is that all “fixtures” are included within the sale, and fixtures refers to things attached to the home in any method, hence being exactly like the custom mention in the above Achronim. Accordingly, I do not see any room to be lenient like the ruling of the above Posek who allows you to switch the Mezuzos for cheaper ones, unless you receive permission from the buyer to do so, or you do so prior to the finalization of the sale, in which case you should explicitly discuss this matter with the buyer.
Sources: See Shivas Tziyon 110, brought in Pischeiy Teshuvah Y.D. 291:8 and C.M. 214:5; Shevet Halevi 2:159; Lehoros Nasan 6:126; Mishneh Halachos 16:98; See regarding the general rule of what is included in a real estate sale: Michaber C.M. 214:11; Bava Basra 65a-b For the secular law see: https://www.thebalance.com/5-things-not-included-in-your-home-purchase-offer-4083212 see regarding following the custom of the country in all sales: Shach C.M. 73:39; see regarding the general prohibition of removing the Mezuzos upon moving: Michaber 291:2; Tur C.M. 314; Smeh C.M. 314:8; Baba Metzia 102a