Hilchos Choshen Mishpat

Volume II : Number 15

Halachic Obligations Of A Landlord

Question:

What items in a home is a landlord Halachically obligated to fix, if they have broken during the rental period?

Answer:

1. A. Before someone rents a home to his friend, he is obligated to fix up any items that are usually fixed by skilled workmen. These include any doors, windows, kitchen cabinets, water pipes, and electrical outlets that are not working properly. He is also obligated to fix anything else that is customarily in working order when moving into a rental property. If the railings on the porch or roof that is used as living space are not as high as required by Halacha (Ma'akah), the landlord is obligated to bear the expense of raising them to the required height. However, Mezuzos must be put up by the tenant at his own expense. B. The obligation of a landlord to fix the above mentioned items exists even if the tenant was aware of these problems before agreeing to rent and did not comment on them. However, if the landlord explicitly stipulated that he is renting the property on the condition that he does not have to fix these items, he has no obligation to do so. C. If the property was in perfect condition before the tenant moved in, and the problems occurred during the rental period, the liability of the landlord is dependant on the cause: 1. If the problem was caused by an outside factor, e.g. vandals threw a rock that broke a window on the rental property, or a blockage was accidentally caused in the pipes by a child flushing a washcloth, the landlord does not have to fix this. However, neither does the tenant, and if he wishes he may return the property to the owner in this condition. 2. If the breakage was caused by normal use, e.g. pipes started leaking, or the water boiler broke, and it is likely that these things could happen after the amount of time that they have been in operation, the landlord would be obligated to fix them. 3. If the items should not have broken during normal usage, and it just "happened" to break for some unknown reason, or if it is determined that the tenant improperly operated any of the items in the home, and this may have been a contributing factor to the breakage, the landlord would have no obligation to fix them.

Sources:

The Gemara in Bava Kamma (99b) states that a worker who is considered to be an expert in his field who unintentionally causes financial damage on the job to the person that hired him, must pay for that damage, if he is being paid. This is because he is considered a Shomer Sochor (a paid watchman), who is liable for any damage caused by him. If he is not being paid for his work, he is considered a Shomer Chinnom (unpaid watchman), and can not be held liable for damages caused by him, unless he was negligent. This is stated as the Halacha in the Shulchan Oruch (Choshen Mishpat 306:6).

In the case discussed in Question B, it is clear from the Gemara in Bava Metzia (81a), and in the Teshuvos Maharam (quoted in the Mordechai in Bava Metzia, Siman 359), that the messenger (Shimon) must be considered a paid worker, even for transporting the diamond to the exchange. Since he is planning on benefitting from Reuven by making a percentage of the sale of his diamond, we consider transporting the diamond to be part of the transaction that Reuven will pay him for. To retain the lesser liability of a Shomer Chinnom, the watchman must be doing the owner a favor, and not have his own interest in mind at all (as discussed below). In our case, Shimon's transporting the diamond is clearly in his own interest, and therefore he has the liability of a Shomer Sochor.

Therefore, although it is true that if Shimon would not find any buyers for the diamond he would receive no payment at all, the fact that there is the possibility that he will receive payment qualifies him as someone working for money, who has the liability of a Shomer Sochor.

This is why the Rema (Choshen Mishpat 306:4) states that a Shochet (slaughterer) who receives payment only for animals that he slaughters that are found to be Kosher, is considered a paid worker on all of the animals. Consequently, if he unintentionally causes one of the animals to be non-Kosher, he must compensate the owner, even though he receives no payment for slaughtering non-Kosher animals. This is also discussed there in the SM"A (14).

However, regarding the money exchanger discussed in Question A, the Ketzos HaChoshen (227:11) quotes the Teshuvos Tashbatz (Vol. 2, Siman 174) that he can not be held liable for his mistake. Even if he would have advised Reuven correctly, that the bills were actually counterfeit, he would have received no payment for his service. He only receives payment when the bills are authentic. Therefore, according to the presently known reality, Shimon was an unpaid expert worker, since there was no possibility that he would get paid for his advice, either it would be correct and he would not get paid, or it would be incorrect and he certainly would not be deserving of payment. Consequently, as long as he caused the loss unintentionally and not at all through negligence, he can not be held liable.The Mishna and Gemara in Bava Metzia (101b) state that a landlord is obligated to fix up any items usually fixed by skilled craftsmen on rental property before a tenant occupies it. This is true even if the tenant is handy and could fix these thing up by himself. This is stated as the Halacha in the Shulchan Oruch (Choshen Mishpat 314). The Rema there (1) adds that even if the tenant was aware of these problems before agreeing to rent and did not complain about them, this is not to be considered as if he is forgoing his right to have these items fixed. Rather, he assumed that the landlord would certainly take care of these things, and there was no need to point them out. However, if the landlord explicitly stated that he has no intention of fixing these things and the tenant agreed to rent it anyway, he can not come back and try to obligate the landlord to fix them. Although the Gemara and Shulchan Oruch there indicate that the tenant is responsible for Mezuza and Ma'akah, since they are Mitzvos that are incumbent on the person living there, not necessarily the property owner, the Rema there (2) states that we must go after whatever is customary in present day society. Today it is customary for building contractors and landlords to provide railings of the proper height, and to install light fixtures and electrical sockets in every room, even if not stated explicitly in the contract. However, it is not customary to provide the Mezuzas, so this remains the tenant's obligation, as stated there in the Gemara.

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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!