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Shabbat Parashat Balak 5773

P'ninat Mishpat: An Apartment that Was Barely Livable part I

(from rulings of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) rents out an apartment. The defendant (=def), pl’s upstairs neighbor, did major renovations, causing much noise and other inconveniences to pl’s tenants, especially because one spouse works from the house, while the other often sleeps during the day due to shifts at work. Pl responded to their complaints by reducing their rent by a quarter during the time of the renovations, for which pl is suing def 7,350 shekels as damages. Def responds that his workers kept to the accepted work hours and standards of cleanliness. He gave advanced notice to all the residents, and no one protested. Def claims that pl is not authorized to give rental reductions and expect def to pay for them, certainly not at a rate that is disproportional to the nuisance that the average person would suffer. The sides agreed to have a compromise but could not arrive at one themselves.


Ruling: Four questions have to be determined before formulating a compromise: 1) Should pl have reducted his tenants rent? 2) Were def’s renovations justified? 3) Did pl lose his right of compensation by not protesting the plans? 4) Are pl’s losses direct enough to warrant payment?   

1) The Shulchan Aruch (Choshen Mishpat 312:17) says that if a rented property is damaged during the rental period, thus lessening benefit from it, the tenant still has to pay in full because the damage is “his bad luck.” In this case, though, the upcoming renovations were a known fact at the time of the renting, and the apartment’s value was already reduced. While one might claim that the tenants accepted the inconveniences and cannot demand a refund, it is clear they were unaware of the extent of the disturbance and would not have rented the apartment (at full price) had they known.

The tenants cannot void the rental due to “blemishes,” as the situation would be livable for most people and because they continued to live there and did not demand to back out of the rental. However, it is likely that they overpaid considering the situation. While the laws of returning mispricing do not apply to real estate (Shulchan Aruch, CM 227:35), it is still forbidden to overprice (see S’ma 227:51), and therefore pl was correct in rectifying that (although one can argue whether it is necessary if the landlord was also unaware of the full impact of the renovations). Furthermore, here the overpricing is not because of a lack of knowledge of prices but based on serious blemishes, and blemishes are grounds for grievances even regarding land (see Shulchan Aruch, CM 232).  

2. In apartment buildings, every owner has ownership of his apartment and partial ownership of joint areas. There is also an ongoing relationship, which governs the exercising of one’s personal rights when it affects others. It is accepted in our society that owners have the right to do renovations even though it causes hardship to others. Considering that at some times one builds and another suffers, while at other times others build and the previous builder suffers, this arrangement is beneficial for society. While there are standards of behavior that are expected to be kept by the builder, there is no proof that def did not do so.

[We will continue next week.]

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This edition of
Hemdat Yamim

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Yechezkel Shraga Brachfeld



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