Question
I am a divorced lady with one child and I work to support myself. A little over a year ago I rented an apartment in Beit Shemesh. The landlord owns two apartments: One is on the upper level which he rented to me and another on the lower level which was rented to a Jew. I rented for a year, gave twelve checks to cover the rent for the entire year and moved in shortly before Pesach. I went away for Pesach and to my dismay when I returned, I discovered that the lower apartment was occupied by eight Arabs who did not speak Hebrew or English but just Arabic. To me they said they were from Gaza but the landlord claims they were Turks. In any case I was very scared for a number of reasons. One reason is because in order to go to my apartment I have to walk by the door of their apartment which is often open. Additionally, they were my only neighbors. Finally, I was petrified to use the open porch since I would be totally unprotected and I never used it while I was there. I immediately complained to the landlord and asked to leave and have my checks returned but the landlord said I am welcome to leave but he would not return my checks. Since I could not afford rent for two apartments, I stayed until the end of the year when I left. I should note that there are other apartments in the neighborhood where foreign workers reside but I would never have rented an apartment like this one since it is different meeting them on the street and having them next door and having to walk by their door with no one around to protect me. Am I entitled to have rent returned since I never would have rented the apartment and the entire time lived in constant fear and only remained because I didn't have a realistic alternative?
Answer
The first point that we will address is whether you were entitled to leave right away and to have your checks returned to you, as you requested.
We will begin by studying a similar question that was addressed by many distinguished poskim, from which we can derive several important general principles which pertain to your question.
A question that was posed about four hundred years ago to the Mishpat Tsedek (2, 31) concerned a person who rented an apartment which was located above a store which was rented to a Jew. One day an aggressive gentile evicted the Jew from the store and took over the store. The Jew who lived in the apartment asked the landlord to allow him to leave because he was afraid that perhaps there will be a leak, or something would accidentally fall onto the gentile's property, and the gentile would make trouble for him.
One of the landlord's arguments was that since there were other stores in the vicinity that were occupied by gentiles, his tenant was aware from the outset that perhaps a gentile will occupy the store below. Therefore, when the renter agreed to rent the apartment, it was with the understanding that perhaps the store will be occupied by gentiles. Additionally, the renter could use the rooms that were not directly above the store without fear. Furthermore, since other Jews rent apartments above stores that are occupied by gentiles the renter is not entitled to be fussy at his expense.
The tenant replied that since the store was rented to Jews at the time that he rented the apartment he did not take into consideration the possibility that the store would be occupied by gentiles in the future. The fact that others rented apartments above stores that were occupied by gentiles has no bearing on him because perhaps they are brave people but he is not.
The Mishpat Tsedek ruled that the tenant was entitled to leave because when a person rents an apartment it is with the understanding that he will be able to use the entire apartment without fear. He furthermore proves that even though the apartment was physically intact, the legal status of the apartment was of an apartment that caved-in because people don't rent apartments to live in fear.
He proves this from the Gemoro (BM 79A) that rules that if one rents a donkey in order to ride on it but the donkey becomes dangerous to ride, the renter can force the owner to provide him with a different donkey even though the original donkey can still be used to carry a non-fragile load and is still physically capable of giving a ride to the renter. It is just that the rider might be thrown off the donkey. From the fact that the renter can force the owner to provide a different donkey one can deduce that providing a donkey that the renter has reason to be afraid to ride is equivalent to not providing a donkey at all. This is clear because the same Gemoro rules that if the donkey is usable but just becomes slower or harder to use the renter is not entitled to demand a replacement donkey.
Furthermore, he ruled that even if part of the apartment can be used without fear, nevertheless the renter can terminate the contract because the contract was made to enable the renter to use the entire apartment.
One of the gedolim to whom the Mishpat Tsedek sent his responsum for review was the Maharshach. He agreed with the Mishpat Tsedek's ruling and also addressed the landlord's argument that other people lived in apartments that were situated above gentile stores. He proves from the Gemoro (BB 23A) that rules that R. Yosef, who was especially particular, had the right to force his neighbors to refrain from using their property in a manner that would disturb overly sensitive neighbors like himself. Thus, the argument that other people did not live in fear has no bearing on those who live in fear.
This was also ruled by the Terumas Hadeshen (1, 322) in reference to a question concerning mekach to'us. He proved from the Gemoro of Rav Yosef that if a person does not eat a particular kind of meat, he can void a sale in which the seller provided this kind of meat to him, even though others who are not so particular could not void such a sale.
We note that your landlord is in a much worse situation from a halachic perspective than the landlord in the case of the Mishpat Tsedek for two reasons. One is that whereas in the case of the Mishpat Tsedek the landlord was not involved in any way with the gentile's occupation of the store, your landlord is the one who caused the problem. Furthermore, whereas in the case of the Mishpat Tsedek the landlord's fear was only that the neighbor would make him trouble with the authorities, in your situation, one has much more to fear, especially if one is a woman with a child.
Since we have seen that a house which is dangerous to live in is considered like a collapsed house, you could have forced your landlord to evict the foreign workers even if he would have to pay a penalty for breaking his contract with them. The reason is because he was bound by his contact with you to provide you with a livable apartment. Therefore, he had no right to create a situation where you, his tenant, would live in fear.
One can prove this from a ruling of the SA (CM 312, 2). A person sold a house to a gentile that he had rented out to a Jewish tenant, with the specific stipulation that the gentile buyer can only begin occupying the house after the renter's contract ends. If the gentile violates this stipulation and forces the renter to leave, the seller must provide the renter with another house that is worth at least the value of the house that the renter occupied.
This ruling is surprising. Why is the landlord obligated to provide another house? At worst, he damaged his tenant by selling the house to a gentile. When one damages, he pays for the damage but has no obligation to arrange for another house.
The Nesivos (312, 5) derives from here (and other rulings of the SA) a basic principle concerning rentals. When one rents out something he obligates himself to provide the renter with something usable and he accepts upon himself a monetary obligation to fulfill this contract. Since under the terms of the original rental agreement he must provide his tenant with a usable property, so if he was even an indirect cause of the tenant losing the property he paid for, he must fulfill his obligation by spending whatever is necessary to provide his renter with a livable apartment. It is not because he damaged his renter, but because he must fulfill his contractual obligation.
Based on this ruling of the SA, if you had immediately sued your landlord in beis din, beis din would have ruled that your landlord must evict the foreign workers, since by renting to them he was rendering your apartment unlivable for you. This is ruled by the SA (312, 17) in the case of a collapsed house which, based on the above, is the same as an unsafe house. Thus, SA rules that if a landlord wishes to demolish a rented house, the tenant can stop him from doing so and if the landlord tears down the house anyway, he must provide his tenant with another house.
Since you only approached beis din after leaving the apartment, the issue of forcing the landlord to evict the foreign workers is moot. Nevertheless, the above discussion is still germane because it shows that your landlord failed to fulfill his basic obligation under the terms of the contract. As a result, you are not bound by the contract since the contract obligated you to pay rent for a livable apartment which he did not provide you with.
This is very clear where someone rents an apartment for a certain price and then the apartment collapses. Obviously, the tenant is not required to pay the rent that he obligated himself to pay originally, since the contract was for a usable house. Since according to the Mishpat Tsedek, a house where one lives in fear is equivalent to a collapsed house, we see clearly that you are not obligated by the original contract.
In conclusion: The landlord had no right to refuse your request to terminate your rental and was required to allow you to vacate. Moreover, you could have forced the landlord to evict the foreign workers even if he would have lost money. Or, if you had wanted, you could have forced him to find you alternative accommodations at no extra cost to you.
Since you did not stand up for your rights at the time, what is relevant at present is that your landlord did not fulfill his contractual obligation to provide you with a livable apartment. It remains for us to determine if you are entitled to a refund of a portion of the rent that you paid and if yes, how much.
