Question
I live in rental apartment. In our contract it states that I have to pay the water bill and need to register my rental with the municipality so that they should bill me directly for the water, which I did. Recently, a water pipe began leaking and I promptly informed the landlord that he should fix the leak. However, it took the landlord almost a month until he brought in a plumber and as a result I got a much larger water bill than usual because of all the extra water that went to waste. May I charge the landlord for the extra water, since it is his fault?
Answer
Before discussing the question we should clarify that a rental agreement, like all agreements, creates responsibilities and grants rights. In the following discussion we will clarify several of these responsibilities and rights.
In order to answer your sheilo we need to clarify a number of issues. The first issue is: who is responsible to fix leaking pipes in a rented apartment according to Torah law.
The Gemoro (Bava Metsiyo 101B) states that the general rule is that any repair which is commonly done by a skilled workman is the responsibility of the owner. There is a difference of opinion among the Rishonim whether this applies to problems that develop during the rental period or only applies to repairs that were needed at the time of the rental. Most Rishonim (e.g. Rosh res 35, 6) are of the opinion that this applies even to damages that develop during the course of the rental, namely, that the landlord is responsible for repairing the damages if generally they are repaired by landlords. He is not obligated to make minor repairs which landlords typically do not repair. That is the ruling of the Shulchan Aruch (312, 17).
The minority opinion (e.g. Ritva on Bava Metsiyo 101B)) maintains that the landlord is not obligated to repair these damages. However, many (Ramban cited by the Ritva who concurs) maintain that while the renter cannot force the landlord to repair, nevertheless, the owner will not be able to charge the full rental payment because the apartment is in a state of disrepair. Thus, if the owner wants to charge full rent he must repair damages that require the services of a skilled repairman.
Furthermore, since it is customary that the landlord is responsible for the repairs, that is automatically a condition of the rental agreement (Ramo 314, 2). Therefore your landlord was certainly obligated to repair the pipe, according to Torah law.
It is important to point out that there is a cap on the cost of the repairs that the landlord is obligated to pay. The Nesivos (312, 11) and others explain that the landlord is only obligated to use the rental money to repair the rental, but he has no obligation to use his savings in order to enable the renter to fully utilize the rental. If the cost of the repair exceeds the landlord’s income from the present rental, the landlord can refuse to repair the property. Of course, he cannot force the renter to remain. It is just that the renter cannot force the owner to repair.
The second issue to consider is whether you could have repaired the pipe yourself and what would have been the monetary consequences of your doing so.
As we mentioned above, the Nesivos explains the Shulchan Aruch (312, 17) that the landlord is not obligated to dip into his savings in order to provide his renter with a usable apartment. The Nesivos deduces that, therefore, if the renter prepaid for time that he hasn’t yet occupied, the landlord must utilize the extra funds he already received to perform the necessary repairs. He says that if the renter did not prepay, since the funds that the owner is obligated to use are still in the renter’s possession, the renter can use these funds himself to hire someone to perform the repairs.
Thus we see that a renter can himself fund and arrange for the repairs to be done if he still has outstanding rent, even for future months. This is also the opinion of the Kesef Hakodoshim (314, 1) and the Ra’anach (res. 38). The Kesef HaKodshim advises showing the problem to the local beis din and working under their guidance so as to avoid future issues concerning whether the repair was really necessary and whether the renter overpaid. Often that is difficult but one should at least get written estimates from three repairmen, since that is common prudent practice and the practice of beis din.
Thus, we have established two very important principles. One is that the owner was obligated to repair the leak, and two if he is derelict in performing his duties the tenant has the right to repair the leak at the landlord’s expense. However, in your case neither of these occurred. Neither the landlord nor the tenant repaired the burst pipe and the water went to waste at the tenant’s expense. Therefore, we have to decide if the landlord must reimburse the tenant for the additional amount he was charged by the water supplier.
It is clear that the grounds for charging the landlord for the additional amount the tenant was forced to pay is that he damaged the tenant. Since he didn’t physically damage the tenant’s property these are causative damages. We know that there are two classes of causative damages: garmi for which one is liable and gromo for which one is not liable.
Since the damages resulted from the inaction of the landlord there is a dispute among the Rishonim if one can classify the damages as garmi. The source for this dispute is the beraiso (Bovo Basra 2A) that discusses the case of one neighbor who has a vineyard and the other who grows grain and the fence separating them develops a hole. The ruling is that the owner of the vineyard must repair the fence and, if he is warned to repair the hole and neglects to do so resulting in his neighbor’s loss of his grain crop, due to the prohibition of deriving benefit from kilayei hakerem (growing grain in a vineyard), he is liable.
The Gemoro (Bava Kama 100A) explains that the basis for the vineyard owner’s liability is that what he did is classified as garmi. The Rishonim dispute why this is classified as garmi. The Ramban (Kuntress Garmi) writes that the vines are like the ox of the vineyard owner and they damaged the neighbor.
The Ramah (Bava Basra 17-18 and cited by Tur siman 157) however, maintains that the reason is that the vineyard owner was derelict in fulfilling his duty to repair the fence. He deduces from this that if one neglects to construct a fence separating his property from his neighbor’s and as a result his neighbor was burglarized, he is liable. He specifically writes that the reason is that one is liable for his inaction.
Thus we have a major dispute whether inaction can be classified as garmi or not with the Ramah and Riaz (Shiltei Gibborim Bava Kama) and others ruling that it is possible and many Rishonim including the Rosh (res 101, 10) and Meiri (Bava Kama 56A) ruling that it is not possible for it to be garmi. It is important to note that the opinion of the Ramah is cited by the Tur (siman 157) and the Ramo (155, 44).
Since it is a major dispute, beis din will not force one who causes damages by inaction to pay, but if he holds money of the one who damaged him he will not be forced to return the money because he can say kim li like the Ramah.
We should note that this braiso also is a source that even though the damaged party could have prevented the damage, the one who damaged as a garmi is still liable. The proof is that in the case of the vineyard, the grain owner could have repaired the fence himself and later sought compensation from his neighbor. This is particularly important in your situation since, as we mentioned earlier, you had the right to repair the leak at the expense of your landlord.
We should note further that even those who maintain that inaction cannot be classified as garmi, hold that it can certainly be classified as gromo because gromo does not require action as we can derive from the Gemoro (Bava Kama 56A) that states that one who refuses to testify is called a gromo and he is not liable in beis din but is liable in the heavenly court.
There is a major dispute if a person can grab money from one who owes him money, only in the heavenly court. While the Shach (28, 2) agrees with the Maharshal that one cannot, there are others (See Pischei Teshuvo (28, 6) and Rabbi Akiva Eiger who cite others and in fact this is the opinion of Rishonim like the Meiri (Bava Kama 56A) and Ohr Zorua (see Maharach Ohr Zorua 229)) who maintain that one can grab. Rabbi Akiva Eiger is undecided if a person can say kim li like those who say that grabbing is allowed.
Moreover, in your situation you have the additional support of the Ramah and others who maintain that even beis din could force the landlord to pay because it is called garmi. Therefore, if you didn’t yet pay all your rent you can withhold from the rent the amount you needed to pay extra because of your landlord’s negligence. However, it is wise to wait until the last month since otherwise your landlord can try to evict you due to failure to pay rent. Additionally, if he has a security check from you he may be able to cash the check for the missing rent but that requires another discussion.
