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Devorim-Responsibility to repair an air conditioner in a rented apartment

 

Question

I rented an apartment that was fully air conditioned. We didn’t write anything in the contract about the fact that the apartment is air-conditioned but when I rented the apartment I saw it and assumed that this was how I was renting the apartment. We used the air-conditioner whenever it was hot. One day the air conditioner stopped working. I called the landlord and asked him to repair the air conditioner. He replied that he never obligated himself to provide me with air conditioning and therefore, it was not his responsibility to repair it. Can I obligate him to fix it? I should add that we used the air conditioner properly and cannot be blamed for its malfunctioning.

Answer

There are two reasons why your landlord might be free of responsibility. One is (like he argued) that he never included the air conditioner in the rental. The second is that even if he did include it, perhaps he is not required to repair it.

One indicator if air conditioning was included in the rental could be price. If apartments that are not air conditioned clearly rent for less money and most people do include air conditioning in the rental of their house, then, based on price, you can prove that air conditioning was included in the rental.

The source that price determines the scope of an agreement is the Gemara (BB 92A) that discusses the sale of an ox that was discovered by the customer to be wild – and thus unsuitable for plowing – only after the purchase. The Gemara discusses a case where the customer demanded that the seller return his money and take back the ox because he wanted to use the ox for plowing for which this ox was not suited. The seller replied that the sale is valid since the customer can slaughter the ox and he never said that he wanted an ox for plowing. The Gemara rules that if the price was clearly for an ox that can be used for plowing the customer is entitled to return the ox. Tosafos proves that the reason the customer can force the seller to return his money is because not only price indicates the intent of the customer but also the majority of people who bought oxen intended to use their ox to plow.

Therefore, if the price of the rental indicates that you were renting an air conditioned apartment and the majority of apartments that were rented in your area are air conditioned, you can prove that you are entitled to an air conditioned apartment. This would apply even if you did not see that the apartment was air conditioned and even if you never began to use the apartment. This is ruled by the Ramo (CM 220, 8).

Since you did see that that the apartment was air conditioned before signing your rental agreement, even if price does not prove that air conditioning was included, in most places halacha would rule that it is included in your rental of the apartment.

The source for this issue is a beraisa, that is cited by the Gemara (BM 101B), which classifies the respective responsibilities of a landlord and his tenant. One of the items it lists is that a landlord is obligated to “open windows” for his tenant. The Rishonim suggest various explanations of this responsibility. The Ra‘avad says that the Gemara is referring to a windowless house and is ruling that even if a renter noticed prior to renting that the house did not have windows, nevertheless, the tenant can force his landlord to open a hole and install a window since by definition a house has a source of light and without a window it cannot be called a house. (Note that this was written before electricity.)

The Rambam (Sechirus 6, 3) however, when he codifies this ruling, writes “the landlord is required to repair windows that were damaged.” The SA (CM 314, 1) quotes the Rambam and the Gra (note 1) explains that the Rambam understood the Gemara in this manner because the rule of the Ra’avad is obvious and does not require a beraisa to teach it to us. The Tur (CM 314), when he records this ruling, cites another Ra’avad who offers a third explanation, namely, that even if the house has sources of light, the landlord must install a window in any opening that has a frame for a window. Even if the window was boarded up at the time of the rental and this was noticed by the renter, the landlord is required to install a window by virtue of the fact that there is a frame for a window, unless it was stipulated otherwise. (In Israel contracts usually state that the tenant is renting the apartment “as is” in order to allow landlords to avoid this type of liability.) The Sema (314, 1) conjectures that this is the intention of the Rambam as well and in any case this is authoritative since no one disagrees.

Thus we derived the basic principle that if a feature is noticeable when a person rents a property, even if it is not strictly needed in order to enable the tenant to use the rental, it is included in the rental, unless it was stated otherwise or there is a custom to the contrary. We can derive this since one can live in a well-lit house if it has several windows and yet if the house has windows that were in disrepair the landlord is required to repair them.

Besides this proof, the contention that the air conditioning was never included in the rental is far-fetched since if that would really be the case your landlord could have forbade your use of the air conditioning even after you moved in. In truth, he did not have that right since the custom nowadays is that renters use air conditioners that are present in rented apartments. Therefore, if the contract did not state explicitly that you were not allowed to turn on the air conditioning, you were allowed to use it, which means that it was part of your rental and like anything that is rented you may keep using it.

Therefore, the only remaining contention that your landlord can have is that he is not required to pay the bill for repairing the air conditioner since there are items which the renter is required to repair at his own expense.

If there is a well-known custom that landlords don’t need to pay for repairing air conditioners then he is not obligated to do so since custom supersedes the strict halachah. However, if there is no such custom we must consider how the halachah rules.

The SA (314, 1) quotes the Rambam who rules that there are two criteria that need to be satisfied in order to require the landlord to pay for the repair. The first condition is that the repair requires a repairman and normally is not performed by an unskilled person. The second condition is that the item that requires repair is part of normal living. We should note that other Rishonim, including the Rosh, disagree, and require a landlord to repair anything even if it only satisfies the first criteria. However, since the SA rules like the Rambam your landlord would be justified if his position is supported by the SA.

The Rambam does not precisely define what he calls normal living. However the Aruch Hashulchan (314, 1) does. He says that the Rambam intends to exclude items that are generally not found in homes in the area and only the well-to-do minority have such items in their homes. The rationale is that if the house was not rented as a luxury apartment the landlord is not obligated to provide his tenant with a luxury apartment. (Thus, if it was rented as a luxury apartment then this exception will not apply.) As long as the luxury item was in working order the tenant could use it but the landlord never obligated himself to repair the item. An example would be an apartment that had a Jacuzzi. Incidentally we note that the poskim (for example see Emek Hamishpot page 381) rule that a landlord in Israel is required to repair a solar heater since solar water heaters are a normal feature.

Therefore, if there is no established known custom that governs your situation, if air conditioning is not a luxury item in your neighborhood, i. e. it is normal for homes to have air conditioning, then you can require your landlord to repair the air conditioner. This is especially true if the air conditioning doubles as the heating system since heating is usually not a luxury.

In case the landlord is required to repair the air conditioning and yet refuses to pay for the repair you may hire a repairman yourself and deduct the expense from your rent. It is important for you to hire a reputable repairman who charges normal prices and to save your receipts since your landlord can later challenge you in beis din and you will need to prove your expenses. This is stressed by the Kesef Kodshim (notes in the margin of CM 314) in the case of a landlord who refused to repair a heating system.

Additionally, there is a limit on the cost that you can require your landlord to cover. If the repair will cost more than the amount of rent you will need to pay until the end of the rental period, you cannot (CM 312, 17) force the landlord to pay anything out of his pocket. The Aruch Hashulchan (312, 33) adds that you also cannot force the landlord to continue renting to you beyond the day your lease expires in order to make funds available to cover the repair.

In conclusion: If there is no custom to the contrary, and nothing was stipulated at the outset, your landlord’s argument that air conditioning was never included in your rental agreement is not valid. Unless air conditioning is a luxury that is not common to apartments in your area your landlord is required to pay for the repair if the cost does not exceed the total income he will have from the rental until the end of your lease. If the landlord refuses to pay for the repair, you can pay it yourself and deduct the cost from future rental payments.

 

 

 

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