The Landlord’s Obligations Regarding Repairs to the Rented Property

In this article we will discuss defects that are discovered or develop in a rented property: upon whom the obligation to repair them rests; whether the tenant can claim that the transaction was made in error and cancel the lease; what the ruling is according to Halacha; and what the common practice is according to civil law. The practical recommendation is to set everything out in advance in a written and signed contract, in order to avoid disagreements.

  The Source of the Law

The Mishnah (Bava Metzia 101b) states: “One who rents a house to his fellow — the landlord is obligated regarding the door, the bolt, the lock, and anything that requires the work of a craftsman; but something that does not require the work of a craftsman is done by the tenant.” We also find there in the Gemara: “The Sages taught: one who rents a house to his fellow — the landlord is obligated to provide him with windows, to strengthen the ceiling for him, and to support a beam for him.” It is clear from the Gemara that anything requiring the work of a craftsman is the landlord’s responsibility, while anything that does not require a craftsman is the tenant’s responsibility. This is not limited to something that did not exist in the apartment and that requires a craftsman, which the landlord must provide for the tenant; rather, even something that did exist in the house and became damaged, the landlord must repair if it requires a craftsman.

The Rambam’s Approach

So too the Rambam writes (Laws of Hiring, ch. 6, halacha 3): One who rents a house to his fellow must provide him with doors, open for him the windows that became damaged, strengthen the ceiling, support the beam that broke, make a bolt and a lock, and the like — things that are the work of a craftsman and are a major essential aspect of dwelling in houses and courtyards.

It is clear from the Rambam’s words that there is an additional requirement: besides the fact that it must be the work of a craftsman, in order to obligate the landlord to repair it, it must be a major essential aspect of living in houses. The Dvar Avraham (siman 37, branch 5) explains that the source of the Rambam’s ruling is the Gemara’s statement that the ladder must be provided by the tenant and not by the landlord. The Ritva (there, s.v. la’asot) explains that the ladder mentioned in the Gemara is a ladder used to go up to the roof, whose use is temporary; this is not part of the essential use of the house, and therefore the landlord is not obligated to provide it. It follows from his words that even if something requires a craftsman, the landlord is not obligated to repair it if it is not a major essential aspect of dwelling in houses.

A Contradiction in the Rulings of the Shulchan Aruch

The Rema (Choshen Mishpat, siman 314, se’if 1) ruled: If the landlord repaired these items and they broke during the term of the lease, then if he said to him, “this house,” he does not need to provide him with another; but if he said simply “a house,” he must repair it throughout the entire term of the lease.

Elsewhere (Choshen Mishpat, siman 312, se’if 17), the Mechaber cites the opinion that only if the entire house collapsed — meaning that the house collapsed in the middle of the rental period — is the landlord not obligated to rebuild it. But if it still exists, only it is dangerous to live in, the landlord is obligated to repair it.

The Question of the Ketzot HaChoshen

The Ketzot HaChoshen (314:1) writes that the Rema’s words in this siman are the words of the Nimukei Yosef (Bava Metzia 59a, s.v. Gemara): If he rented him “this house,” he is obligated to provide it at the time he brings him in; from then on, if it falls, he is not obligated to provide him another. But if he rented him simply “a house,” he is obligated to provide one for the entire rental period (as brought in the Darkei Moshe).

The Ketzot HaChoshen asks: it was already ruled above in the Shulchan Aruch (312:17) that only when the entire house fell is the landlord not obligated to repair it; but if it exists and is merely dangerous to live in, the landlord must repair it. The source is a responsum of the Rosh (cited in the Tur): specifically when it has fallen entirely, one can say that “this house” is gone; but if the house is dangerous, since it still exists, it is not appropriate to say that it is gone, for presumably it is still called a house, and therefore the landlord is obligated to repair it. If so, in a case where the house exists and only the lock was damaged, since it still bears the name of a house, why should the landlord not have to repair it? He leaves this matter requiring further analysis.

Explanation According to the Netivot

One can explain the contradiction in the Rema as follows: in truth, the Rishonim did not disagree at all regarding this issue. When the Mechaber (in siman 312) cited the ruling of the Rosh that if the house exists but is dangerous to live in the landlord is obligated to repair it, the Mechaber added in his wording: “if he has rental payment in his possession.”

The Sma (there, subsection 32) notes that in the words of the Rambam and the Tur we do not find this addition. He writes that, nevertheless, the expression “in his possession” is not precise; rather, it refers to any case in which the landlord has already received the rental payment for a period during which the tenant has not yet lived in the house. In such a case, the landlord must use these funds to repair the house. But if he has not yet received payment for the future period, he is not obligated to repair it, for as long as the tenant has not paid, the landlord can in any event remove him from the house and tell him to rent another house. However, the Sma concludes by questioning this reasoning: ultimately, since the landlord obligated himself to rent him this particular house, and it still has the status of a house and can be repaired, why is he not obligated to do so?

The Netivot HaMishpat (Biurim, subsection 11) explains the Mechaber’s words: he does not fully agree with the Rosh’s position, which obligates the landlord to repair in every case. Rather, the Mechaber holds that the landlord’s obligation to repair applies only when the cost of the repair does not exceed the rental payment, since the rental money is committed to the tenant in order to provide him with the house. Therefore the Mechaber wrote that the landlord must repair it if he has prepaid rent in his possession. That is, if the tenant has not yet paid the rent, the landlord is not obligated to repair; rather, the tenant repairs it at the expense of the rent he is going to pay. If the tenant has already paid, the landlord repairs it from the rental money he received. But all of this is only when the repair costs are less than the rent. If repairing the house costs more than the rent, the landlord is not obligated to repair it at all in a case where he said “this house.”

According to the Netivot, it may be that there is no dispute at all among the Rishonim regarding the landlord’s obligation to repair defects that occur in the middle of the rental period; the distinction is only whether the repair costs exceed the rent or not.

Accordingly, the contradiction can be resolved: in siman 314, the Rema cites the approach of the Ritva and Nimukei Yosef that if these items became damaged during the rental period, the landlord is exempt from repairing them; whereas in siman 312 it appears that he is obligated to pay. According to the above words of the Netivot, one can explain that in siman 314 the Rema refers to a case where the repair costs exceed the rent, and since he said “this house,” he is not obligated to add his own money in order to repair the house. In siman 312, however, the case is one in which the repair costs are less than the rent, as the Netivot explains there.

The Definition of a Properly Repaired House According to Custom

The Rema (siman 314, se’if 2) writes that in these matters we follow the custom of the country. The Aruch HaShulchan (there, se’if 1) writes that anything normally done in houses, the landlord must provide for the tenant; but something that only wealthy people are accustomed to have, the landlord is not obligated to provide. It implies that even something that is not the work of a craftsman, if the custom is for such a thing to be in an apartment, the landlord must repair it.

The Contemporary Custom in Eretz Yisrael and Worldwide: The Landlord Repairs What Results from Reasonable Use

However, the Emek HaMishpat (vol. 5, siman 35, paragraph 42) writes that the custom in Eretz Yisrael, when the contract did not stipulate otherwise, is that the landlord repairs any defect caused by reasonable use.

He cites in the name of Maran Rabbi Yosef Shalom Elyashiv zatzal that the rental law is binding in our time because people follow it, of course excluding clauses in which the practice is otherwise.

The wording of the Rental Law [current at the time of writing the article] is as follows. Section 7(a): The landlord is obligated, within a reasonable time after receiving a demand from the tenant, to repair in the rented property, or in his property that serves the rented property, anything that causes a real interference with the ordinary use of the rented property or with its use according to the agreement between him and the tenant (hereinafter: a defect), whether the defect existed at the time the rented property was delivered to the tenant or developed thereafter, except for a defect for which the tenant is responsible under the Bailees Law, 5727–1967, or whose repair, according to the agreement or according to what is customary under the circumstances, is not incumbent upon the landlord.

In the United States as well, in recent decades the custom and the law have become widespread that the landlord is obligated to repair defects and flaws that arose due to ordinary use and reasonable wear and tear. Indeed, about sixty years ago the practice was that the landlord was not obligated to repair anything, and this situation led to large areas of poor neighborhoods where people of low social — socioeconomic — status lived, and their apartments remained extremely neglected; these areas were called “slums.” The situation brought about significant social tension between the different classes, namely the apartment owners — the wealthy — and the tenants — the poor. As a result, court rulings in the United States began to spread, followed by explicit legislation in various states, requiring landlords to repair defects that arose through reasonable use.

This custom has likewise spread in Canada and also in parts of Western Europe, such as Belgium, Switzerland, France, and other places, where the law requires landlords to repair defects that arise during the tenancy. However, it is simple and clear that if the parties agreed otherwise in the contract — or even orally, if both parties admit to it — then certainly the law follows their condition.

The Tenant Entered the Apartment, Saw the Defects, and Remained Silent

Although in any sale where the buyer purchased, saw the defect, and remained silent, the relevant law of sale applies, here it is not considered a waiver, and he may later claim that what is missing must be completed. This is explained in the Ritva (Bava Metzia 101b, s.v. veliftoach), who writes that although at the time of the rental the tenant entered and saw that these items were not there, we do not say that he saw and accepted it, because the landlord spoke to him of a dwelling, and it is not fit as a dwelling except with these items; it is therefore as if he stipulated it explicitly. This is also ruled by the Rema (314:1).

However, one can say that the tenant can make this claim only regarding something the landlord is obligated to provide by the law of the Gemara; then the Ritva’s reasoning applies, since without it the dwelling is not fit to live in, and it is as if it was explicitly stipulated. But regarding what the landlord is obligated to repair because of custom, as explained above, in such a case the tenant cannot demand it from the landlord.

Where There Is a Defect That the Landlord Is Obligated to Repair but the Tenant Is Not Interested

It is ruled in the Shulchan Aruch (Choshen Mishpat, siman 232, se’if 5): Reuven sold Shimon houses that he owned in another city, and before the sale was finalized, gentiles entered the houses, damaged some places, blackened the walls with smoke, and uprooted the doors of the house and the windows. Shimon wants to retract, and Reuven claims that since it is a repairable defect, he will deduct from the price so that the house can be restored to its former state and the sale can stand. The law is with Reuven. The Rema adds: for he sold him a house, and it is still called a house. The source is a responsum of the Rosh (klal 96, siman 6), meaning that the seller has the right to prevent cancellation of the sale by repairing the damage.

The Magen Avraham (Orach Chaim, siman 437, subsection 7) asks from the words of the Gemara (Pesachim 4b) regarding one who rents a house to his fellow on the presumption that it has been checked for chametz, and it turns out not to have been checked: even in a place where people are accustomed to pay for checking for chametz, it is not a mistaken transaction, because a person is pleased to perform a mitzvah with his money. This is also ruled in the Shulchan Aruch (Orach Chaim, siman 437, se’if 3), and the Rema writes there that some say the landlord must pay the tenant for checking the house. He asks: according to the Rosh’s approach, whenever the defect is not in the body of the house itself, the landlord can complete the deficiency, and the buyer cannot claim a mistaken transaction and cancel the sale. If so, why does the Gemara explain that this is not a mistaken transaction because a person is pleased to perform a mitzvah with his money? Even without this reason, the tenant should not be permitted to cancel the transaction, since the defect is not in the body of the house itself.

The Explanations of the Acharonim Regarding the Difference Between the Defect of a House Not Checked for Pesach and Another Defect

The Or Sameach (Laws of Sale, ch. 17, halacha 9) writes in resolution that when one rents a house to his fellow on the presumption that it has been checked, the tenant may possibly not find out about this, and as a result he may fail to check the house before Pesach and come to violate the prohibition of chametz. In such a case, it is considered a mistaken transaction even though the defect can be repaired, because the tenant is not interested in entering into such a doubtful risk. This is unlike an ordinary transaction, where in the end, when he uses the house, he will become aware of the defect and repair it; that is not considered a mistaken transaction.

The Mekor Chaim (siman 437, subsection 7) explains: when do we say that if the defect can be repaired it is not considered a mistaken transaction? Only where it is possible to live in the house. But where the house is not fit for residence on Pesach because it has not been checked, this is considered a defect in the object of the transaction itself, and it is a mistaken transaction. This is unlike the case in the responsum of the Rosh and the Shulchan Aruch, where even after the damage that was done, the house is fit for habitation, and one merely needs to spend money to restore it to its previous state. In such a case, it is not considered a defect in the object of the transaction itself, and the defect can be repaired while the transaction remains valid.

Practical Recommendation

In light of the above, since there is a dispute as to which repairs the landlord is obligated to make and which he is not, in order to prevent disagreements between the tenant and the landlord it is worthwhile to agree on everything in advance: what the landlord is obligated to do and what he is not. As I have written in previous articles, it is recommended that everything be written and signed in an orderly contract, so that neither party will be able to deny the agreement between them.

From “Torat HaMishpat”