Shabbat Parashat Devarim| 5767
Payment of Rent on an Apartment Which Becomes Uninhabitable - Based on Halacha Psuka - vol. 12 - A Condensation of a Psak by the Beit Din of the Religious Council of Yerushalayim, vol VIII - pp. 139-165
Case: The plaintiff (=pl)rented an apartment from the defendant (=def)and sublet it to a nursery class. A severe plumbing problem in the building caused a hole in the ceiling, prompting authorities to condemn the apartment until the problem was fixed. The nursery, which paid a year’s rent in advance, demanded a refund from pl for the time the apartment was condemned. Consequently, pl is unwilling to pay def for that time and demands compensation for his loss of rent revenue. Def points out that the rental contract exempts him from fixing problems in the apartment.
Ruling: The exemption from fixing things in the apartment does not include matters that cause the apartment to be uninhabitable, as providing living quarters is a basic part of the landlord’s responsibility.
The gemara (Bava Metzia 103a) says that if one rented a specific house to his friend and it fell, the landlord does not have to supply an alternative house. There is a machloket if the house is intact but uninhabitable, whether the landlord has to fix the house (Rosh, accepted by the Shulchan Aruch, CM 17) or not (Ritva, accepted by the Rama (CM 314:1). Acharonim claim that the minhag is like the Rosh.
Clearly, according to the Rosh, as long as the landlord has not fulfilled his obligation to fix the house, he cannot demand rent for that period. Thus, pl, who is the nursery’s landlord, cannot demand rent from it. When a rented house falls, there is also a machloket whether the renter has to pay rent from that point on (Rash Mishantz) or not (the Ritva). Thus, there is logic for pl to say that since he is muchzak on the rent, he can say kim li like the Rash Mishantz that he deserves rent even when the apartment was not usable. However, this does not seem to be the case when the apartment can be fixed. The Ra’anach (38) explains that the reason the renter might have to continue paying after the house falls is that the landlord can say it is the renter’s “bad luck” that the house he had rights in fell. However, regarding the need to fix, it is normal for an apartment to require fixing and since the landlord is capable of fixing it if he desires, he can be told that if he wants to receive rent, he should fix it. Therefore, pl has to return the rent to the nursery but is exempt from paying def rent for that period.
The plaintiff’s demand for compensation for lost revenue is similar to a case of “one who withholds his friend’s purse,” where the rule is that this is not direct enough damage to require payment (Yerushalmi, Bava Metzia 5:3). There is a machloket among poskim in a case where the withheld profits were definite. Since the matter is unresolved, def cannot be obligated to pay pl for the rent the nursery withheld.
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Max and Mary Sutker
and Louis and Lillian Klein, z"l.
May their memory be a blessing!