Simcha rented an apartment from Sasson. The rental contract
did not mention whose duty it was to pay va’ad habayit (house committee)
dues. Sasson argues that Simcha should pay since he benefits from the services
provided. Simcha replies that the responsibility for paying rests on Sasson,
since he is a partner in the jointly owned property and is therefore responsible
for its upkeep. How should this be settled?
Let us start with a piece of sound advice to landlords and
tenants. Make sure that this issue is decided before signing the rental
contract. Whatever you agree to is binding once it has been included in the
signed contract (b’dovor sheb’momon tno’o kayam). You will thereby avoid
any unnecessary future disagreements.
In the absence of an agreement, it is necessary to clarify
what are the respective obligations of landlord and tenant according to Torah
law. We have previously discussed the obligations of a non-resident apartment
owner (see "Non-resident partners"). We came to the conclusion that since he is
a partner in the building, he must pay his share in its upkeep. We mentioned
that this would include tarring the roof, sealing and painting the external
walls, elevator insurance and maintenance, etc. These are all services from
which the landlord benefits, since his property is kept in good shape and
maintains its value. The tenant is therefore exempt from these payments.
Furthermore, it should be stressed that the duty to pay va’ad habayit
dues stems from being a partner in the jointly-owned sections of the building.
Accordingly, any claims for such payments would have to be exclusively directed
to the landlord. We also quoted the ruling of the Shulchan Oruch (Choshen
Mishpot 161:2) that a non-resident partner in a courtyard is obligated to
pay his share in the cost of installing a gate, complete with lock and bolt, at
the entrance to the courtyard. However, he is exempt from participating in the
cost of "other items". The Nesivos (Ibid. Note 2) explains that "other
items" refers to providing a booth for the watchman at the entrance to the
courtyard. The function of such a service is to prevent outsiders peeking into
the courtyard and thus interfering with the residents’ privacy (hezek r’iyah).
Obviously, only those who actually reside in the courtyard benefit from this
service. However, the Prisha adds that this exemption only applies if the
house is unoccupied. If the owner has a tenant living in his property, he is
also liable for his share in the watchman’s booth. The Me’iri (Bovo
Basro 7b) explains that we regard the tenant as deriving benefit from this
facility in place of the landlord, hence his liability. This ruling poses a
problem, since we have stated that the basis for having to pay is deriving
benefit. At the end of the day, it is the tenant who will benefit from the
privacy provided by the watchman’s booth. Why should the landlord have to pay?
When a landlord rents out his property, he must ensure that
he provides all the standard facilities associated with such a residence.
Whenever professional work is required, says the mishna (Bovo Metzia
101b), it is the landlord’s responsibility to provide the facility at his
own expense. That is the reason why the landlord must pay for construction of
the watchman’s booth, says the Emek Hamishpot (3:46). The general rule
remains that whoever derives benefit has to pay. The tenant will have to pay his
share in the joint electricity bills, since he actually uses the lighting and
the elevator. He will also have to contribute to the cost of cleaning the lobby
and stairways. But if a new notice board is required, his landlord will have to
foot the bill since such facilities are standard in apartment blocks nowadays
(apart from the fact that this prevents people posting notices on the walls,
ruining the paintwork!).