BS”D
Question
I rented a house for a year starting in September that had an outdoor pool in the backyard. During the winter a crack developed in one of the walls of the pool and the owner refused to repair the pool. Can I force him to repair it? If not, can I demand a reduction in the rent?
Answer
Your question is a specific case of a more general question. The question can be redefined as: what are the options which are available to a renter in case the property he rented was damaged in a way which prevents him, or makes it very difficult for him, from utilizing a significant portion of the property. In your case, it is the swimming pool. In Israel, sometimes there are leaks which prevent the renter from using a room in the winter.
The first issue is whether the owner is obligated to repair the damage. If the rental agreement does not address this issue and there is no custom, this is the subject of a dispute among the Rishonim. The basis for the dispute is the fact that a renter is considered to be a temporary owner. Thus, there is a minority opinion that the permanent owner is not responsible for damages that occur during the rental period.
However, the majority opinion and the ruling of the Shulchan Aruch and the common custom is that the owner is responsible for most damages that occur during the course of a rental. When he is responsible, he must pay to repair the damage. It is significant to note that unless the custom is different, the owner’s responsibility is limited to damages whose repair does not cost more than his rental income from the property. There is a dispute if it is limited to future rental income or to the total income from the entire rental period. If the cost exceeds this amount he is not obligated to repair the damage. However, the renter has the prerogative to simply vacate without penalties.
If the owner is responsible and refuses to repair the damage, the renter can choose one of several options. One option (ruled by the Ra’anach res. 38, Maharam Padua res. 39 and the Maharshach (vol. 4 res. 9) among others) is to simply vacate and cease paying rent. Even if he paid in advance for future months he is entitled to a refund. The reason is that it is a mekach to’us. The renter obligated himself to pay rent for a property that had a pool or had five rooms, for example, and the owner is only providing him with a property that doesn’t have a swimming pool or only has four rooms. Therefore, in its present state the rental is classified as mekach to’us and the renter is not bound by the contract. Even when the owner did not cause the change and even when there is nothing he can do about it (as was the case by the Maharam Padua discussed in greater detail below and the Maharshach), it is classified as a mekach to’us. Mekach to’us does not have anything to do with blameworthiness, just whether one is getting what was originally agreed upon.
A second option is for the renter to repair the damage himself, and use the rental money to pay the cost. He may (see Nesivos 312, 11) repair the damage now and he may deduct his expenses from future rental payments. The reason is because he owes money to the owner but the owner is obligated to repair. Therefore, he can fulfill the owner’s obligation with the owner’s money.
The Kesef Kodshim (314, 1) advises the renter to do this under the auspices of a beis din in order to avoid future disputes such as whether the expense was justified, done properly etc. If the renter works under the guidance of beis din he won’t be subject to future litigation.
The Oruch Hashulchan mentions further that the renter may only use money which he has to pay under the terms of the present rental agreement. If the cost exceeds that amount, he may not pay more and force the owner to allow him to stay in the rental beyond the term of the present contract until his costs have been covered.
If the renter does not opt for either of the first two options he has a final option to have his rent reduced. The basis for this is the responsum of the Maharam of Padua (res. 39) mentioned above. His responsum is very basic and many principles are derived from it. He was asked to rule in a dispute between a money lender who rented a concession which had governmental approval to lend with interest, and the owner of the concession. The background for their dispute was a new edict of the ruler of Montova limiting the rights of Jews to lend with interest to goyim. When the money lending tenant originally rented the concession, he was allowed to charge interest both on loans with collateral and those without collateral. The new edict prevented Jews from charging interest on loans without collateral, vastly cutting into the profits of the money lending tenant. The Jewish community tried for nine months to have the edict rescinded but they were unsuccessful. The tenant felt that he deserved to have his rent reduced since he was earning less.
The Maharam ruled that he deserved a reduction for this period because when he originally rented, the property could be used for both types of loans, and afterwards one of its uses ceased to exist. Therefore, he ruled that he is entitled to a reduction in his rent.
A similar ruling was issued by the Mishpat Tsedek (2, 31) in another case of a property where again, due to circumstances beyond the control of the owner, a room became unusable. He also ruled that the renter is entitled to a reduction.
Therefore, in this case, since the original price was for a house with a swimming pool and during the course of the rental the pool became unusable, the renter is entitled to a reduction in the rent he pays.
