Community Magazine October 2009

The Shulhan Aruch 1 rules that if one sells a defective real estate property, the buyer may nullify the sale. This ruling, however, is limited to a defect in the very structure of the building; if a defect is discovered in an external or insignificant aspect of the sale property, the seller is instructed by the Bet Din to correct the defect, thereby restoring the validity of the transaction. There is an important distinction drawn between sold and rented properties in this regard. A landlord renting out a property does not always enjoy the right to correct an external defect to prevent the revocation of the deal. If the time needed to correct the defect is longer than the rental term, the tenant may nullify the agreement. Needless to say, if the landlord is incapable of correcting the defect, the tenant is absolved of all responsibility to honor the contract. In short, an external defect which cannot be corrected in due time terminates a rental agreement. 2 In defining what constitutes an external defect, halachic authorities assume that if the severity of the defect causes unbearable living conditions, the renter may nullify his contract. When a rental location is in very close proximity to an outrageous amount of smoky air pollution, construction noise, or a violent and dangerous neighbor, we may assume that the situation is intolerable, and is grounds for termination of the agreement. 3 Furthermore, if the defect was present before the tenants signed the lease, the landlord has in effect rented out an apartment that is not fit for use, and the tenant’s signature was procured under false pretenses. It should be noted that a typical construction site, or a next door neighbor who smokes, is by no means considered a defect. Although the tenant finds these disturbances irritating, it does not release him from his obligation. Since the possibility of standard construction next door was anticipated by the renter, he is considered as having explicitly accepted these conditions when he signed the contract. Likewise, any situation which is common practice is not classified as a defect. 4 These laws represent the majority view among the halachic authorities. Some authorities 5 , however, disagree, and do not release the tenant from his contractual obligation in a case of an external defect. Their rationale is that while a structural defect is grounds to nullify a sale, an external defect is not. Although it is incumbent on the homeowner to correct the defect, if he is incapable of doing so, or if it is a very lengthy process, the renter is not released from the contract. Since the landlord provided the tenant with a perfectly functional apartment as agreed upon, any external disturbances or defects are not the landlord’s responsibility . The tenant, who is the legal occupant of the apartment, must bear these difficulties as part of the deal. Furthermore, the tenant should have exercised due diligence and verified the condition of the 1 Shulhan Aruch 232:5. 2 Or Same’ah, Hilchot Mechira 17, Mabit 1:40, Mishpat Sedek 2:31. See also Pit’hei Hoshen 3:6, p .118. 3 Ibid. 4 Shulhan Aruch, Hoshen Mishpat 232:6. 5 Mahhane Efrayim Hilchot Sechirut 6, Pene Moshe 2:32, Netivot Hamishpat 310:2. adjacent property. 6 He is therefore bound to the contract and, if need be, must suffer through the ordeal. Since both of these positions are deemed halachically valid, the Bet Din, in such a case, faces a situation where it becomes necessary to formulate a compromise in order to settle the dispute. A common settlement proposal that may be implemented by a Bet Din would be to absolve the tenant of any future obligation, while allowing the landlord to keep the money already paid to him. The rationale for such a settlement is that since both parties have valid halachic sources supporting their claims, the tenant may not be forced to honor the contract, while the landlord may permissibly withhold his deposit. 7 Perhaps the most common cause for dispute between landlord and tenant is the absence of a written contract. When no contract was signed and a dispute arises as to whether or not the time period of rental has elapsed, the burden of proof rests upon the tenant. Torah law 8 always considers rented property to be in the possession of the owner, and if the tenant has no proof to support his claim to rights to the property, he can be evicted without any notice. In short, the owner of the property has the upper hand when claiming the lease has terminated, since the property is in his legal possession. However, before evicting the tenant, the landlord is required to swear before the Bet Din that he speaks the truth. Although Torah law casts the burden of proof upon the tenant, many halachic authorities 9 rule that tenant protection laws established by the federal government are halachically binding. Since these laws were enacted for the benefit of the general public, they are incorporated by Torah Law under the provision of dina d’malchuta dina , which obligates us to honor civil law. Accordingly, when a dispute arises between tenant and landlord regarding the time period of rental, the landlord seeking to evict a tenant bears the burden of proof. With two legitimate, opposing halachic viewpoints, a Bet Din is likely to settle the dispute by trying to accommodate both litigants in the fairest manner. Rarely is a Bet Din confronted with a case of a tenant who passes on and the landlord insists on collecting future rent. Yet, Torah law encompasses even difficult situations, and a clear halachic verdict can be submitted. While some halachic authorities 10 view a property rental as a legal purchase, thereby enabling a landlord to collect payment even from a tenant’s estate, other poskim disagree. 11 Although rental is a legal purchase, the sale is divided into 12 monthly parts. Every month constitutes a new purchase, and thus if a tenant passes on, the landlord may collect only the sum previously owed by the deceased. The tenant’s heirs are absolved from paying any future rent, since the purchase sale of the following month never went into effect. (These laws do not apply to commercial real estate.) 6 Sema 232:10; see Aharonim. 7 Pit’hei Hoshen 3:6, pp. 115-119. 8 Shulhan Aruch, Hoshen Mishpat 312:16. 9 Iggerot Moshe, Hoshen Mishpat 1:72; Imrei Yosher 2:152. See also Minhat Yizhak 2:86. 10 Bet Yosef, Hoshen Mishpat 312:19. 11 Shulhan Aruch and Rama, 334:1. Torah Law 62 Community magazine