In a dispute between tenant and landlord, who is considered the claimant

Shalom,

In a dispute between a tenant and a landlord regarding who is responsible to pay for a certain repair, who is considered the claimant and who the defendant: the tenant, who carried out the repair and wants to recover the cost from the landlord by deducting it from the rent, or the landlord, who is claiming the full rent? This has a practical implication for filing a claim in Beit Din, where the rule is that one "follows the defendant".

Shalom u’vracha,

If they are in the middle or at the beginning of the rental period, the claimant is the tenant. If they are at the end of the rental period (that is, each month is considered a new rental period), the claimant is the landlord.

In Siman 312, se’if 15, it is explained that in all cases of doubt between a tenant and a landlord, the landlord is considered the muchzak (the party in presumed possession), since land is presumed to remain in the possession of its owner. Even if he comes to ask at the end of the month, after the tenant has already lived there and is in effect coming to recover the rent from the tenant, the landlord is still considered the muchzak, because by living on his property the tenant undertook the obligation to pay rent. In our case, there is certainly an obligation on the tenant to pay the rent; however, according to the tenant’s claim, the landlord owes him other money. If this is indeed so, he can withhold the rent for himself based on the principles of “avid inish dina le-nafshei” (a person may, within certain limits, act on his own to realize his right) in Siman 4. Therefore, if the tenant is certain of the correctness of his claim and withholds the rent for himself (and according to the Taz in Siman 337, se’if 10, even in a case of doubt he may withhold it), then the landlord is the claimant, because from the tenant’s perspective, once he has ‘taken hold’ of what he considers his due, there is no longer any litigation. However, if they are in the middle of the rental period, the landlord can tell the tenant to leave the apartment, since he intends not to pay. Nevertheless, in practice, since bringing a claim in Beit Din takes time, if the landlord does not evict the tenant from the apartment because of his intention to avoid payment, by the time they actually reach Beit Din the month will already have ended, and the defendant will be the tenant.