Question
Five years ago, I rented an apartment. Since the kitchen in the apartment was very old, I asked the owner for permission to replace the kitchen cabinets. The owner replied that he doesn't mind but he may not want my cabinets when I leave. Now that I am leaving the apartment the owner wants to keep the cabinets. One rabbi told me that I can't charge anything for the cabinets because I did it for myself and therefore, it is ze nehene veze lo choseir-the owner is benefitting but I am not losing anything and therefore I cannot ask him to pay for the cabinets. Is he correct?
Answer
We must first understand your situation. Since the owner did not ask you to improve the kitchen, the laws that govern your situation are the laws of a yoreid-one who worked for someone without being hired. Therefore, we have to first study if one who acts as a yoreid in your situation is entitled to be paid.
There are two errors in the ruling you received. One error is that your action is not viewed legally as an action for yourself exclusively. Secondly even if it was only for your benefit you would be entitled to a payment. Therefore, invoking ze nehene veze lo choseir to your situation is inappropriate
The proper halachic analysis of your action is that you improved the kitchen for both yourself and for the owner. While it is correct that the only reason you improved the kitchen is because you wanted to use the cabinets, and your landlord even informed you that he may not keep your cabinets, nevertheless you were aware at the time that you would one day move out and would want to leave the cabinets.
There are two cases in the Gemara where a person improved a property just for himself. In one case (BM 14B) a person bought land from a thief not knowing that the property was stolen. Subsequently, he improved the property, thinking that he was the owner of the property. The Gemara rules that when the true owner forces the buyer to return his property, he must reimburse the buyer for his actual investment but not for the full value of the improvements to the property.
The second situation (BM 39B) is where a person named Mori bar Isak inherited land from his parents and lived on the land and improved the land, thinking that he was the sole heir of his parents. After a while, a person from a distant land showed up and proved that he was a brother of Mori and entitled to half of the property. The conclusion of the Gemara is that the long-lost brother must pay Mori for the entire value of the improvement that Mori made to his portion of the property and not just Mori's expenses.
The Ramban and others ask why Mori was entitled to be paid more than his actual expenses, in contrast to the case of the one who bought stolen property. He answers that the basic rule is that one who improves property, mistakenly thinking that he is the owner, is only entitled to reimbursement of his expenses. However Mori was entitled to more because Mori was in fact a partner with his brother on the property and the law of partnerships is that whenever one partner improves the property of the partners, he is entitled to payment for the value of the entire improvement.
The Ramban explains that the reason a person who improved a property that he mistakenly thought was his is only entitled to reimbursement of his expenses is because when he improved the property, he did not do so with intention that he would be paid.
These two rulings of the Gemara and the explanation of the Ramban are authoritative, since the Beis Yosef (siman 375) cites the explanation of the Ramban concerning the person who bought property from a thief and also SA rules (CM 287, 3) the case of the heir who improved an inherited property when he believed that he was the sole heir.
Thus, we have derived from the Gemara: first that even if one improves a property only for himself (like in these two cases) he is entitled at least to reimbursement of his expenses. Second, the only time he is only entitled to reimbursement of his expenses is when he intended to benefit only himself and no one else. However, in your case, even though your landlord did not obligate himself to accept your improvements, you still had in mind that perhaps he would keep them and benefit from your improvements in which case you could ask to be paid for your improvements. Therefore, the implication of the Ramban is that you are entitled to be paid, not only for your expenses but even for the value of your improvements.
There are several examples in the Gemara of situations like yours: one who improved a property for himself but was aware that eventually perhaps someone else would benefit from his improvements. In these situations the one who improved the property was entitled to payment in full for the value of the improvements that he made.
One such example is where a person married a minor girl whose father passed away prior to her marriage, called kidushei me'un. The law is that the girl may terminate the marriage prior to becoming twelve years old. If the girl owned property which her husband improved before she terminated their marriage, he is entitled to full payment for the value that he added to her property and not just to reimbursement of his expenses. Thus, we see that even though his primary intention was to benefit from the improvements that he made, nevertheless, he is entitled to full payment for the improvements.
Having established that you are entitled to payment for the improvement that you made to your landlord's property, we have to decide two more issues. One is how much you must be paid and the second is whether you will have to reduce this amount in order to reflect the fact that you used the kitchen for five years.
In order to decide both of these issues it is important to determine who is the owner of the cabinets that you installed in your landlord's kitchen. In general, there is a dispute between the Rosh and the Rashbo concerning this issue. The case that they disputed is an anecdote in the Gemara (BK 21A) where a person, without asking permission from orphans who owned of a piece of land, erected a house on their land and used the house.
The position of the Rosh is that until the orphans pay for the house it belongs to the one who built it. Therefore, he ruled (BK 2, 6) that the one who built the house did not need to pay rent to the orphans for living in the house that he built, since he was the owner of the house.
The Rashbo (commentary to BK 21A) disagrees and maintains that the one who built the house does have to pay the orphans for living in the house that he built even though he had not been paid for having built the house at the time he lived in it. His rationale is that when the orphans eventually pay for the house, they acquire the house retroactively. The reason they acquire it retroactively is because the Rabbonim understood that the one who built it, did it so with the intention of selling it to the orphans. Since at the outset he did not expect the orphans to pay immediately for the house, the fact that they did not pay immediately does not prevent them from acquiring the house retroactively.
A very important principle that we see from this case (as well as other cases in the Gemara) is that when one improves someone else's property, he automatically owns the improvement that he made and if the property owner does not demand its removal the property owner must pay him for it.
The dispute between the Rosh and Rashbo only applies to the case in the Gemara because there the one who built the house assumed that the orphans would eventually want the house and he did not expect to be paid until the orphans grew up. However, in your situation, it is clear that you did not want to transfer ownership (If you would have, your landlord could have increased your rent due to the improved kitchen as the orphans did.) and your landlord warned at the outset that he was not committed to paying for your improvement.
Having established that you are the owner of the improvements that you made we can draw several practical conclusions.
First, obviously ze nehene veze lo choseir has no bearing on this case. Clearly if the landlord wants to keep your cabinets, he has to buy them from you. This also means that he must pay you the value of your improvement in its present state, after it was used by you for five years. Third, you do not have to pay anything for having used the improvements in the interim, just like the Rosh ruled in the case of the orphans.
In conclusion: Your landlord must pay you for the improvements that you made to his kitchen, but you must take into account the state of the kitchen at present.
