בס"ד


מס. סידורי:1687

apartment renter that didn't pay the rent

שם בית דין:Eretz Hemdah - Gazit ,english
דיינים:
הרב Mann Daniel
הרב cohen sholmo
תקציר:
התובעים הם משכירי דירה כשהשוכרת לא שילמה להם שכר דירה, במשך זמן מה, וכמו כן לא יצאה מהדירה בזמן שנתבקשה, הם תובעים מהשוכרת תשלומי שכירות מלאים וכמו כן הוא תובע את דמי השכירות הגבוהים על החודשים שבהם השוכרת היתה צריכה להתפנות.
פסק הדין:
על הנתבעת לשלם לתובעים סך של 40,600 ש"ח.
נושאים הנידונים בפסק:
תאריך: ל' תשרי תשע"ו

30 Tishrei 5776

October 13, 2015

Case # 74095

Final Ruling

In the claim between

The plaintiffs – 1. Mr a

2 -  Mrs. a

            and

The defendant – Mrs. b

I. Introduction

On Thursday, 26 Tammuz 5774 (July 24, 2014), Beit Din held a hearing between the plaintiffs, and the defendant, regarding rental of the plaintiff’s apartment.

Beit Din’s interim decision was: 

5. Beit Din does not see a legal or moral basis for continuing the present situation. Therefore, we rule that Mrs. B must vacate the apartment by August 31, 2014 (5 Elul 5774). 

7. Beit Din will send instructions regarding the process of adjudication on the monetary element of the case.

In a second interim ruling on Tuesday, 21 Elul 5774, September 15, 2014, Beit Din ruled:

1. The defendant’s counterclaim of 100,000 shekels compensation is rejected.

2. The plaintiffs should inform Beit Din when they want Beit Din to decide on the matter of the final amount of rental pay due by the defendant to the plaintiff.

Since that time, the defendant has written several letters criticizing the rejection of the counterclaim, and the plaintiff was waiting for the vacating of the rental apartment in order to make a final claim.

According to the notes of the secretary of the Beit Din, the defendant informed her on Jan. 14, 2015 that she vacated the apartment. However, the secretary told Beit Din that the defendant had admitted to not having removed all her possessions and that she did not initially want to inform the plaintiff that she had left.

On March 30, 2015, Beit Din received a final claim by the plaintiff, which takes into consideration the rent due to him until the defendant’s vacating of the apartment, which, the plaintiff counts as having occurred on Feb. 2, 2105, when he says that the Beit Din office (not the defendant) informed him that she had left.

In the plaintiff’s final claim request, he wrote as follows:

1.       As a matter of good will, we are ready to renounce to reimbursement of the sewage expenses made before April 2014 without our previous agreement. 

2.       As a matter of goodwill we are ready to renounce to further compensation for late payment if every amount due will be paid at the due date as decided by the Beitdin. 

3.       We request Mrs B to pay the Electricity expenses due by January 31st 2015 to Electricity Company (Chevrat Hacheshmal): 690 NIS

4.       As a matter of goodwill, we may understand the defendant's perceived claim about disagreement during the first renting year and may accept a symbolic discount of 300NIS per month during the first year. Altogether 3600 NIS discount. 

5.       Rental pay due by the defendant by 31 January 2015. The defendant announced to the Beitdin (and not to us directly) that she left on February 2nd.

 

April 2014:                       4000 NIS

May 2014:                       4000 NIS

June 2014:                       4000 NIS

July 2014:                         4000 NIS

August 2014:                  4000 NIS

September 2014:         6000 NIS (30 dayX200NIS/day)

October 2014:                6200 NIS (31 days)

November 2014:          6000 NIS (30 days)

December 2014:           6200 NIS (31 days)

January 2015:                 6200 NIS (31 days)

6.       As a matter of goodwill, we do not request the additional costs such as cleaning, painting the apartment, replacing the broken tap, etc.

7.       We request that the final ruling will end this case and request the Beitdin to rule that no more claim will be addressed for this litigation. 

 

The total fee requested is 47,000 shekels, plus 690 shekels that the defendant should pay immediately and directly to the Electric Company.

 

Beit Din will, in this final ruling, do two things in relative brevity: 1. Respond to some of the defendant’s stronger claims found in written communications after and against its interim rulings. 2. Determine the amount of money due to the plaintiff.

II. Complaints about interim rulings

The defendant had many complaints about the interim rulings, particularly the second one, which absolved the plaintiff of damage payments for allegedly providing the defendant with an apartment in poor repair and causing her pain by not being responsive. Most of the complaints are addressed in the original ruling, and Beit Din as a rule does not respond in writing to complaints about its rulings, as the recourse a litigant has is to formally appeal. However, because we are referring to an interim ruling, which is now followed by a final one, and because the defendant appears troubled by what she perceives as lack of justice, we will respond to some of her apparently stronger-felt claims.

1. One of the major arguments between the parties was whether the plaintiff had a right to a security deposit to be cashed in advance. The defendant pointed out that the language of a receipt written by Mrs. A implies that the money advanced was for the first two months’ rent, whereas the plaintiff pointed out that on the back side of the contract, it is written that there is to be a deposit payment. The defendant claimed in Beit Din that the clause had been added afterward, which in effect is forging the document. The defendant made note of the fact that the Av Beit Din commented that this is a very serious claim. Yet, she pointed out that in pg. 2 of the second interim ruling, Beit Din wrote that “the plaintiffs’ position is not morally problematic and even if they are not correct, their demand is reasonable” and is “not grounds for compensation for abusive behavior.”

The answer to the apparent contradiction is as follows. One must distinguish between the practice and the alleged means of promoting it. The practice of taking an extra month’s rent as a security deposit to be returned at the end of the rental is a very standard one. Thus, even if the original agreement had not called for one and the plaintiffs later demanded it, that change is not the type of abusive behavior that would require punitive damages against them, which is legally a highly uncommon outcome (bad treatment by a landlord rarely calls for more than a reduction in rent due). That which Beit Din claimed was a very severe accusation was to say that the plaintiff altered the contract after the fact. Indeed, if true, then the means of trying to secure an otherwise legitimate claim is a severe one. However, even if that was done, that alleged act of impropriety is not grounds for punitive payment, when it was not directly the cause of financial loss. (Beit Din does not have proof that there is a connection between the plaintiffs’ behavior and the defendant’s medical conditions, and it is certainly very difficult to prove a direct enough connection to require payment.)

2. Another claim that the defendant repeated was that the plaintiff forged other matters. One was that he altered check stubs. However, we must point out that check stubs are not a legal document of any sort, but a note that the owner of the checks writes to keep record of what the check was written for. Thus, even if the plaintiff wrote on the defendant’s friend’s stubs, it is perhaps (depending on the context) an act of bad manners or a sign of something suspicious, but it is not in and of itself, an act of forgery.

Similarly, the defendant cited her friend as saying that the writing that accompanied one of the documents in question was not her own, and based on that again said that there was forgery involved. Again, we must point out that this is not a claim of forgery. It is perfectly legitimate for one party to write that which is agreed upon and have the other side (or, in this case, her representative) sign it, which is something that the defendant’s friend did not contradict in the report attributed to her. (The e-mail attributed to mrs s'. reads: “The Hebrew signature is mine, the rest of the writing is not.” In later communications, the defendant writes that the signature was scanned off her checks and attached to the document later. This is certainly not what mrs s' has said.

3. Several times, both in the hearing before Beit Din and in writing, the defendant indicated that she stopped paying rent when she realized that she had a choice between medical treatment to save her remaining leg and between paying rent. While no documentation was provided to prove that this was the choice before the defendant, neither the plaintiffs nor Beit Din takes her predicament and the decision lightly. Indeed the halacha is that a person is not required to pay the debts in a manner that does not allow them to live life with the most basic necessities (see gemara Bava Metzia 113b; Shulchan Aruch, Choshen Mishpat 97:23). Therefore, we do not criticize the defendant for choosing a major health concern over paying rent. On the other hand, the plaintiffs are not required to let the defendant stay in their apartment indefinitely.

There are two approaches among the halachic authorities as to whether a rental property remains in the full legal possession of the landlord with an agreement about the rental, in which case, if and when the tenant stops paying rent, the landlord can demand the end of the rental, or whether the property is acquired by the tenant for the time of the rental agreement, in which case, he can continue living there irrespective of whether he is behind in payment or not.

The Rama (Choshen Mishpat 334:1) seems to leave the matter as an unsolved question as to which opinion is accepted regarding whether fundamentally, the renter receives control of the property and cannot be expelled for lack of payment during the time of the agreement. It is likely the author of the Shulchan Aruch (see analysis in Mishpat Hasechirut, p. 407-417) rules that the renter has control. However, in the circumstances of this case, the defendant was required to vacate the apartment after proper warning, and this for a few reasons. Mishpat Hasechirut (ibid.) demonstrates that when the landlord is particular about being paid in the beginning of the month for the upcoming month that he has a right to void the ongoing rental agreement from the time of late payment (see also, Pitchei Choshen, Sechirut 6:(25)).

In any case, the defendant did not have a right to stay indefinitely. After the first year was completed on July 31, 2013, the lease was not renewed. There was discussion of doing so, but due to the fact that the defendant was not willing or able to provide checks in advance, there was no agreement. The plaintiffs agreed to let her stay on a temporary basis and during the course of the year there were various requests for her to move out. Even if one were to say that the contract of the first year continued into the second year, there is no question that the plaintiff’s did not agree to a third year, as was confirmed very clearly in the hearing in Beit Din on July 24, 2014. Therefore, the defendant certainly had no right to continue in the apartment beyond the point set at and in the aftermath of the hearing for her vacating of the apartment – August 31, 2014, as this would be stealing the plaintiff’s property. Even if she did not have money to pay for rent (which is a fact that Beit Din was not asked to determine) and there was a responsibility for her to be helped by outside sources, there is no reason that this obligation should fall on the shoulders of the plaintiffs.

4. Identity of the Owner of the Apartment

A point of contention between the sides has been whether or not the plaintiffs are the legal owners of the rental apartment in question.  We should first point out that there is no direct legal ramification of this point regarding the litigation at hand. According to the defendant, the owner is the plaintiffs’ sister/sister-in-law, respectively, and no one has questioned the fact that the plaintiffs have been authorized to rent out the apartment and receive the rent money. Thus, in regard to renting the apartment, the plaintiffs are the legal litigants.

However, Beit Din will not ignore the fact that in response to the first question that appears in the hearing transcript, whether the apartment is in the plaintiffs’ name, the plaintiff’s answer was that it was in both of their names. In later communications with the Beit Din office, the plaintiff reportedly repeated that he could prove his claim. After a long delay, the Land Registry papers do indicate that while the plaintiffs own an apartment in the building, the apartment in question is registered in the name of the plaintiff’s sister. He provided a document that provides the plaintiff certain ownership rights to a percentage of the ownership for having helped finance the acquisition, but this agreement does not find expression in the Land Registry. Thus, the plaintiff answered Beit Din’s question falsely. While there could have been slight room for misunderstanding, the plaintiff did not clarify when the matter was raised as an issue. The halachic consequences of this fact, though, are not major since a legal difference between whether or not he is the legally registered owner has not been presented. However, the matter does tarnish the reliability of the plaintiffs’ other claims in a manner that can potentially be of consequence in rulings that are based on peshara hakerova ladin (compromise that is close to the normal ruling).

 

III. Analysis of final payment

1. Discount for flaws in the apartment

On many of the questions of the quality of the apartment and the service the plaintiffs provided, it is a question of the word of one versus the word of the other. In general, the landlord who has a contract for a certain amount of money has the advantage halachically, which means that the tenant must prove that what he or she received was less than what was promised (see Shulchan Aruch, Choshen Mishpat 232:11 and Sema ad loc. 25).

It is arguable that the apartment had enough flaws to justify a small reduction in rent, although this was not proven. We conclude that the 3,600 shekel discount and the forgiving of compensation for certain legitimate requirements upon leaving the apartment that the plaintiffs inserted into their final claim certainly suffices to cover any settlement based on p’shara kerova ladin.

2. Increased payment for delay in leaving the apartment

The contract between the parties states that for every day the renter is late in vacating the apartment, she will pay 200 shekels, not including damage the delay will cause the landlords. Paragraph 6 of the first interim ruling, in which Beit Din instructed the defendant to move out of the apartment by August 31, 2014, referred to this provision of the contract, while stating that Beit Din was not formally ruling on that matter.

At this point, Beit Din will rule on the matter. An explicit obligation to pay in a signed rental contract is binding unless it can be demonstrated that the obligation falls under the category of asmachta. Asmachta is an apparent obligation but one that a person accepts upon himself with the belief that it will never come to fruition, and in many cases, such an obligation is not binding (see details in Shulchan Aruch, Choshen Mishpat 207). The most relevant determinant factor in this case of whether or not this provision is an asmachta is the question of whether it is an exaggerated or a reasonable obligation in cases where the one who obligates himself has control over the situation (see Rama, Choshen Mishpat 207:13).

Additionally, the contract relates to the payment of 200 shekels not as a separate payment for the delay, but sets that as the rate of the rent during that period. 200 shekels a day translates into approximately 6,000 shekels per month, which is 1.5 times the cost of the normal rental of the apartment (according to the price some two years earlier and renewed one year earlier). Considering the difficulties caused by having a tenant who is supposed to leave, including the fact that it becomes difficult to find another tenant, due to the uncertainty, and many other factors, that amount is not unreasonable at all. This is a reasonable price for a short-term rental, and the continued use of an apartment after it was supposed to be vacated, when the landlord has no way of knowing when the tenant will leave, is certainly no better for the landlord than a short-term rental. We point out that according to the Law of Purchases of Apartments, Amendment to par. 5, when a seller is late in allowing entry of the buyer into the property, he has to pay the buyer 1.5 times the going rate for rental of a similar property. Therefore, Beit Din accepts the plaintiffs’ calculation of increased rent from the beginning of Sept. 2015 until the vacating of the apartment.

 

3. Payment of August 2013 rent

The sides dispute whether August 2013 rent was paid in cash or whether the originally disputed deposit check was used in lieu of payment. This dispute in turn impacts upon whether the April 2014 rent, which all agreed was not paid in a direct form, is owed to the plaintiffs or whether the security deposit should be used to offset it.

The August 2013 payment was, no matter whose version we accept, an unusual one. Until then, all payments were made via checks that the defendant’s friend had given to the plaintiffs. All subsequent payments were made by bank transfer, which we have been able to identify in the plaintiff’s bank account and about which there is no dispute. Thus, this is the only payment about which there is no de facto proof of payment.

While this would seem to work against the defendant in regard to the reasonableness of her claim, this is not necessarily so. This is because this payment was made in the middle of different agreements of payment. The plaintiff had written to a friend of the defendant to try to arrange more checks for a second year of rental, and these were not forthcoming, apparently to the frustration of both sides. The defendant had expressed her plans to leave in the coming months, such that it was not clear that there was a need for a proper system of payment and thus one cannot dismiss the possibility that she did give cash this one time.

While one can ask why the defendant did not ask for a receipt, one can also ask why the plaintiff did not ask for a written acknowledgement that the security deposit had been used. One can also ask why the plaintiff was suddenly willing to forgo the security deposit. On the other hand, this is understandable considering that: payment had not been an issue at that point, the defendant was in a position where one would have reason to act with kindness towards her, and the issue of the propriety of the security deposit had also been one that had been argued.

On another level, in the Beit Din hearing, the defendant had not said that she remembered paying cash, just that it made sense that she did so. On the other hand, while many of the defendant’s claims seemed exaggerated in Beit Din’s eyes, as explained in the second interim ruling, the plaintiffs’ aforementioned deceit of Beit Din took away from their credibility as well.

In such a case, it is logical to apply the regular rules about disagreements over whether payment occurred. The Shulchan Aruch (Choshen Mishpat 317:1) says that if there is a dispute over whether the renter made a certain rental payment or not, the landlord is believed until the time the payment is due and the renter is believed after the time it was due (even if there is a written rental agreement), although he needs to perform a Rabbinic level oath that he indeed paid. Our case is one in which the dispute arose well after the payment was due, in which case the renter should be believed.

Therefore, based on peshara hakerova ladin, we obligate the plaintiff in 1,000 shekel (instead of 4,000 shekel) for the April 2014 rent.

4. Availability of response by the defendant

Upon receiving the plaintiffs’ final claim for payment, Beit Din forwarded it to the plaintiff and contacted her several times with requests that she respond. After a period of contact with the Beit Din office in which she promised a written response, Beit Din has been unable to contact her during the late Summer 2015 months, and there is reason to believe that this is due to her medical situation. This, of course, makes it difficult to make rulings on matters in which previous claims and confirmed information are not helpful. Specifically, we do not have the defendant’s response to the claim of 690 shekels she allegedly owes the electric company or when she claims that she enabled the plaintiffs to rent out the apartment to someone else.

The plaintiffs informed Beit Din that to expedite matters they are dropping the claim of 690 shekels and leave the matter to the discretion of Beit Din to obligate no more than what they know her to be obligated without any further response.

Beit Din thereby obligates the defendant for rent only until January 14, 2015 (see section I, where we refer to record of her admission to have left only then and furthermore still had her possessions there and had not informed the plaintiffs that she had left). Thus, the payment for January stands at 2800 shekels, instead of the 6,200 shekels originally requested.

We must rule out the possibility that Mrs. B did pay the rent in question at some point. Since she said several times (in the court hearing, in letters sent to Beit Din on 14/12/2014 and 15/2/2015) that she had decided to spend her pension money on treatment to save her leg instead of rent and by her lack of ever claiming to have resumed paying rent or there being any indication that the situation had changed we will treat the unopposed claim that rent payment was never resumed as agreed upon. (We point out that there were a number of oral communications between the defendant and the Beit Din secretary after the time that the defendant received the final claim, during which time no claim of payment arose.)                                       

Therefore, the final award is for 40,600 New Israel Shekels, without additional obligations.

 

IV. Ruling (in English, followed by official Beit Din translation to Hebrew)

1. The defendant, Mrs B is obligated to pay the plaintiffs, mr A and Mrs. A, , a sum of 40,600 New Israeli Shekels.

2. Payment is to be made no later than 30 days from the rendering of this ruling.

3. The ruling is rendered on 30 Tishrei 5776, October 13, 2015.

 

____________________           _____________________                _________________

Rabbi Shlomo Cohen, Dayan  Rabbi Daniel Mann, Av Beit Din    Rabbi Ido Rechnitz, Dayan

הרב עדו רכניץ, דיין                       הרב דניאל מן, אב"ד                                   הרב שלמה כהן, דיין                                     

                                                                                                                                                                                                                                                                                                                                                                                                                         

 

תגיות

סימן שלד - סעיף א סימן צז - סעיף כג סימן רלב - סעיף יא דף קיג - עמוד ב