To Donate Click Here

Vo’eschanan-Installed Air Conditioners in a Rented Apartment

 

Question

When I moved into the apartment that I rented three years ago, the landlord agreed that I could install air conditioners. However, he stipulated that when I leave I must return the apartment to its original state. Now that I am preparing to leave, he decided that he would like me to leave the air conditioners. I have a few questions. First, am I obligated to leave the air conditioners now that he expressed a desire to keep them? Second, if I do leave them, how much can I charge? Finally, if he would not have expressed a desire to keep them, could I have forced him to buy them?

Answer

The answer to your questions is a consequence of how we view your relationship with your air conditioners after you installed them in your landlord’s property and what is your relationship with the improved property.

Normally, when one improves someone else’s property he has the status of a yoreid and the owner must pay him because he is benefiting from the actions of the one who improved his property. However, one does not have to pay for a benefit that he derives from the actions of a person who acted solely on his own behalf. Such a person is not called a yoreid.

For example, the Rama (264, 4) rules that if two people, A and B, were in prison at the same time and prisoner A spent money only in order to gain his own release, B does not have to share in his expenses even if B also gained his own release as a result of A’s expenses.

In your situation, however, even though you installed the air conditioners in order to use them yourself, nevertheless, you have the status of a yoreid. The reason is that you were aware that one day you would vacate the property and perhaps you might leave the air conditioners behind. Therefore, we do not view your action as if it was done solely on your own behalf.

Proof of this can be derived from the Gemara (BM 39A) that rules that a person who occupied and improved the property of someone who was taken prisoner has the status of a yoreid. The reason he has the status of a yoreid, even though he improved the property in order to use it himself, is that he was aware that the owner may someday return from captivity and reclaim his property. Similarly, even though you had the air conditioners installed for your own benefit, you were certainly aware that the property was only rented and one day you would probably vacate the property. Thus you have the status of a yoreid and if you leave the air conditioners behind you will be entitled to payment.

The Gemara differentiates between two types of yoreid. The laws governing them, including the amount of remuneration they are entitled to, differ. There are people who are called a yoreid bershus. These are people who, while they were not hired to improve the property, nevertheless, they had permission to do so. For example, the person who occupied and improved the property of a captive is considered by the Gemara to be a yoreid bershus because the Chachomim granted him permission to do so in order to ensure that the captive’s property is maintained in his absence. The other type of yoreid is called a yoreid shelo bershus.

In your case, since the owner granted you permission to install the air conditioners you have the status of a yoreid bershus. However, you differ from the typical yoreid bershus. The owner cannot tell a normal yoreid bershus to remove his improvement. However your landlord has that right since he expressly conditioned his approval for you to install air conditioners on your returning the property to its original state.

This difference leads to other differences as well. Normally, when a person improves someone’s property with the owner’s permission, his right to remove what he installed is limited. But in your situation since the owner retained the right to force you to remove your improvement, you also retained the right to remove your improvement. The rationale for these differences is that normally when one improves someone’s property, he intends to give his improvement to the property’s owner, and also the property owner has the prerogative to force him to leave his improvement in place. However, since here the owner told you at the outset that you will have to eventually remove your improvement, you did not intend to give him the air conditioners at the time you installed them. It is only now that the owner is asking you to leave your air conditioners that you may are contemplating leaving him the air conditioners.

Thus, what you did at the outset is to place your air conditioners on your landlord’s property without committing to give them to him. In principle you may remove them. This is similar to the ruling of the Avnei Nezer (CM 8) in the case of a rebbe who constructed a permanent succa on communal property and allowed the community to use his succa. After the rebbe passed away, his heirs expressed their desire to remove the succa – against the wishes of the local community. The Avnei Nezer ruled in favor of the heirs since he determined that it was clear that the rebbe never intended to give the succa to the community.

Thus, we have established your precise relationship with the air conditioners and the improved property prior to the owner’s request that you leave the air conditioners. You owned the air conditioners and you could have removed them. Also the landlord could have asked you to remove them. However, in contrast to the Avnei Nezer’s situation, we assess that your original intention was to leave the air conditioners if the owner would agree to pay for them and the landlord never told you to remove them. He merely retained the right to demand that you remove, a right that in the end he chose not to exercise. Therefore, now that your landlord expressed his desire that you leave your air conditioners you can no longer remove them if you are paid in full for them.

We can now begin to answer your second question. When an outsider improves another person’s property and eventually the owner expresses his desire to keep the improvement, there is a major dispute between the Rosh (BK 2, 6) and the Rashba over when the owner actually acquires ownership of the improvement. The Rosh maintains that the property owner only gets ownership when he expresses his desire to acquire the improvement and is prepared to pay for it. By contrast, the Rashba (BK 21A) maintains that when he expresses his desire to acquire and pay for the improvement he acquires it retroactively to the time it was first improved.

However, in your case even the Rashba agrees that the landlord does not acquire the air conditioners retroactively because he certainly did not wish to acquire them earlier. Evidence that he did not intend to acquire them earlier can be brought from the fact that he never offered to pay for them. If he had paid earlier, thereby acquiring the air conditioners, he could have asked for more rent.

Since the owner is only taking ownership of the air conditioners now, the amount that he is required to pay you is the current value of the air conditioners, which is the current price of air conditioners that were used for three years. In addition, you are entitled to the portion of the delivery and installation costs that can be attributed to him. The reason is because you were a yoreid bershus and a yoreid bershus is entitled to the full value of his improvement which is based on the full amount that was invested in the property.

We should note further that at this point he cannot threaten to force you to remove the air conditioners in order to pressure you to lower the price. The reason is that the Chazon Ish (BK 22, 6) and others (See Imrei Maharshach BM 101A) clarify that when Chazal granted the owner of a property the right to ask the one who improved their property to remove his improvement it was in order to protect the owner from being forced to pay for an improvement that he genuinely was not interested in and not as a tactic to force the one who improved the property to accept a lower price. Thus, after he expressed a desire to keep your air conditioners he cannot go back and threaten to force you to remove them if you don’t agree to accept a lower price.

This ruling of the Chazon Ish is the answer to your third question as well. We interpret your landlord’s original stipulation that you must restore the rental to its original condition as a right and not an unconditional requirement. Therefore, if it is evident when you vacate that he is only employing this demand in order to get you to leave the air conditioner without paying for it, he is required to pay you in full since the demand to restore the rental to its original condition must be bona fide.

In conclusion: If your landlord offers to pay you the full current price for the used air conditioners you must accept his offer. The full price is the value of three-year-old used air conditioners plus his share in the installation costs. You can force him to keep the air conditioners if it is evident that his demand that you remove them is an attempt to get you to leave them behind without compensation when you vacate.

 

 

 

 

 

Leave a comment

Your email address will not be published. Required fields are marked *