Rabbi Meir Orlean
The Brachs spent a good part of their time traveling and visiting their children.
They arrived one Thursday afternoon to visit their daughter, but discovered that the plumbing in the apartment they’d rented was problematic. The shower and toilet backed up and emitted a foul odor.
“We can’t live this way!” declared Mrs. Brach.
Mr. Brach contacted the landlord. “There is a problem,” the landlord acknowledged. “We’ve had to fix it a number of times. The plumber won’t be available before Shabbos, though. After the weekend, I can call him again.”
Mrs. Brach spoke with her daughter. “I know that you like your privacy,” the daughter said, “but we have room for you. You’re welcome to move in with us!”
“We don’t want to impose on you,” said Mrs. Brach.
“It will be our pleasure to have you for as long as you want,” said the daughter. “We’re happy to host you for the whole visit!”
Mrs. Brach discussed the issue with her husband. “The situation does not sound promising,” she said. “It will be a few days until the plumber comes, and it’s not clear that he’ll solve the problem completely.” They decided to accept their daughter’s offer.
Mr. Brach notified the landlord that they were vacating the apartment and wanted their money returned. “You misled us,” he argued. “The apartment is not fit for living.”
“What’s the rush?” asked the landlord. “After the weekend, the plumber will come and fix it.”
“We’re not interested in waiting!” replied Mr. Brach.
Mr. Brach and the landlord came to Rabbi Dayan. “Are we entitled to cancel the rental and demand a refund?” Mr. Brach asked.
“Just as mekach ta’us (purchase under false pretenses) or mum b’mekach (defective merchandise) applies to a sale, it applies to a rental, which is like a purchase for the designated time,” replied Rabbi Dayan. “If the apartment turns out to be defective, the tenant can void the rental and demand a refund. Defective plumbing that hampers daily living is sufficient basis to claim mekach ta’us; even a constant foul odor is considered unbearable” (C.M. 155:34; 232:3; Pischei Choshen, Sechirus 4:4).
“What if I were to fix the plumbing completely?” asked the landlord.
“Halachah distinguishes between a temporary defect (mum over) and a permanent one,” answered Rabbi Dayan. “Rosh (Responsa 96:6) addresses the case of one who sold a house in another city, but gentiles had removed some windows and doors and dirtied the walls. He ruled that the sale was valid, since the defect was proportionally minor and transitory; the structure of the house remained intact. Thus the seller can uphold the sale and refund the amount needed to restore the house to its initial state” (C.M. 232:5; Pischei Choshen, Onaah 13:4).
“Is a rental the same?” asked Mr. Brach. “Time is of the essence!”
“Michtam L’David (C.M. #10) maintains that this distinction applies to a rental as well,” continued Rabbi Dayan. “If the defect is not structurally integral, the landlord can repair it and refund the rent for the days that the unit was unusable.
“However, this is not simple,” continued Rabbi Dayan. “The Gemara (Pesachim 4b) teaches that if a person rents a house on Erev Pesach, but it was not checked for chametz, the tenant cannot retract, because people are prepared to spend for a mitzvah. This implies that otherwise he could retract, even though the house can be checked and the ‘defect’ is transitory.
“Magen Ha’elef (O.C. 437:7) suggests a distinction between an investment purchase and a rental or purchase with intent to move in immediately, where it is not possible to wait for the repairs.” (See also Ohr Sameach, Mechirah 17:9.)
“Thus, if the defect can be repaired promptly and fully,” concluded Rabbi Dayan, “the tenant may not void the rental; otherwise he may.”