Question
In June, I rented a small apartment for a year, beginning in September, through a rental agent. My agreement with the rental agent was that he would receive one month’s rent for his services, which I paid him at the time that I rented the apartment. The apartment that I rented was originally built legally as an add-on to the landlord’s original apartment. The landlord added a wall to separate his apartment from the add-on and he rented the add-on as a separate apartment. In July, the landlord received notice from the municipality that they are going to investigate his apartment since they heard that he was renting the add-on as a separate apartment. (Someone apparently snitched on the landlord.) The landlord said he would have to take down the dividing wall between the two apartments and he would replace it with an accordion door. If that did not suit me I could cancel the rental. I took his offer and canceled the rental. I asked the rental agent to refund the fee I paid since in the end I received nothing from his services. The agent refused. Who is right?
Answer
There are two reasons why you are not entitled to a refund.
The first issue is whether you needed to agree to the request of the owner or you could have forced the owner to leave the wall in place.
The basis for the discussion is a Gemoro (Bovo Metsiyo 101B) that rules that if the lease of a tenant expired and the house in which the landlord lived collapsed, the landlord can force the tenant to vacate the property. Since the Gemara conditioned the right of the landlord to force the tenant to vacate on the fact that the lease expired, the Rosh (8, 25) derives that during the life of the lease the owner cannot force the tenant to vacate even if the owner’s own house collapsed. The reason is that the halacha views a rental as being a sale for the duration of the rental period. Just like one who sold something cannot ask for its return if at a later time he himself needs the object which he sold, so too an owner cannot demand that his tenant vacate the property even if he needs the property for himself.
The ruling of the Rosh is recorded by the Shulchan Aruch (Choshen Mishpot 312, 1). The Rama adds that we do ask the tenant to act beyond the strict law (lifnim meshuras hadin) and to allow the owner to break the lease, but the tenant is not required to do so.
Based on the Yerushalmi, there is one exception to this rule. If the owner needs to sell the property in order to meet his mortgage payments and no one is willing to buy the house as long as it is occupied and the bank will foreclose on the mortgage if mortgage payments are not met, then we require the tenant to vacate the property. The reason is that in this case vacating is necessary in order to save the property for its owner.
Before ruling on your situation we must clarify the nature of the owner’s request to demolish the dividing wall. The Shulchan Aruch (314, 1) rules that if one rents out an apartment he is required give an apartment with walls. Therefore, your landlord’s request to demolish the dividing wall was a request to free him from one of his essential obligations. Since people do not live in apartments without dividing walls his request was essentially a request to vacate the property, Therefore, in your situation, if the owner will only be fined for having split his apartment into two but will not lose his apartment, you did not have to allow him to demolish the wall. Only if there was a possibility that the authorities would have forced him to demolish the whole property would you have been required to accommodate his request.
It was proper for you to abide by his request. However, since you were not required to do so you cannot ask the agent to forfeit his fee since your rental was intact and you gave it up of your own free will.
The second reason why the agent does not have to return the fee is based on a din which was ruled by shidduchim.
We must preface that the halachos of real estate agents and shadchonim are generally equivalent since the job is essentially the same. The former agent facilitates a real estate transaction and the latter agent facilitates a marriage, but the idea is the same and the halachos are generally equivalent.
The Terumas Hadeshen (2, 85) records that in his day (the fifteenth century) there were two minhagim concerning when one would pay shadchonus. In some places, the parties would pay when the couple became engaged, and in others they paid at the time of marriage. The Rama (185, 10) writes that the difference is that in places where they paid at the time of marriage, in case the couple only became engaged but never married they did not have to pay shadchonus. However, where the custom was to pay at the time of the engagement (as it is today), in case something happened after the engagement to prevent the marriage, they were still required to pay shadchonus.
The reason for the difference is that the shadchan is considered as having completed his task at the time it is customary to pay. Thus, where the custom is to pay at the time of engagement, the job of a shadchan is to bring the parties to the state where they become engaged. Since at the time of engagement the shadchan completed his job, if something happens subsequently it is irrelevant to the shadchan’s fee.
The custom today is to pay rental agents at the time when the parties sign a rental agreement. Therefore, if one fails to pay on the day when they sign he violates the prohibition of bal talin. Based on the above, this means that the job of a rental agent is completed when he brings the parties to sign a rental agreement, and even if in the end the renter cannot occupy the property the agent is entitled to his entire fee. Therefore, when you paid at the time when you signed the contract you acted according to the halachic requirement, and even if you would have had to allow the owner to demolish the wall, the agent was entitled to his fee.
Therefore, your claim against the rental agent is unjustified.
