Question

Nachum rented an apartment for his young family. About
two months after the beginning of the rental, the owner of the adjoining
apartment began major renovations. The drilling and banging started at 7
a.m. and continued till 3.30 p.m., day after day from Monday to Thursday,
for three full weeks. Since the noise was unbearable, Nachum’s wife and
children took refuge with friends every day. Nachum now claims a refund of
the rental for the period during which the apartment was uninhabitable. Is
he entitled to a refund?

Answer

A person hired a donkey, which became blind or was
confiscated for use by the army. Can the hirer claim a replacement animal?
The mishna in Tractate Bovo Metzia (78a) states that the
owner can say to the hirer, "I am not supplying you with a
replacement. The donkey you hired still exists!" Rashi ad loco
explains that what the owner is really saying is that your luck also
contributed to this situation, where there is a donkey which can not be
(effectively) used. Should the donkey drop dead, the owner would be
obligated to supply a different animal. In Tractate Arachin (20b)
our Sages inform us that if a person rented a house which subsequently
developed tzora’as (spots on the wall which render the house
spiritually unclean), he can not claim alternative accommodation. The
landlord can say to him that the house he rented is still standing. The Tosafos
explain that one may not derive benefit from a house which has been
definitely declared to have tzora’as. The tenant can no longer live
in the house. He does not have to pay rent for the future. However, since
the house still stands, the landlord is under no obligation to supply him
with another place to live. The fact that the tenant is unable to use the
house is attributed to his bad luck.

Someone rented a house. The army came to town and
decided to quarter some soldiers in the house he had rented. Does the
tenant have to continue paying rent to the landlord? According to the Nesivos
(310:2), it would depend on whether the soldiers left room for him as
well. If he can continue living in the house together with the military,
albeit with difficulty, he is still obligated to pay his landlord the full
agreed rental fee. The fact that he has to share his accommodation with
some soldiers is deemed his bad luck. However, if the soldiers occupy the
entire premises, leaving no room for him and his family, he does not have
to continue paying rent.

Applying this principle to our case would lead us to
the conclusion that whether Nachum is entitled to a refund of rental
depends on the level of disturbance. If the noise and vibration are so
severe as to make it totally impossible to stay in the apartment, he would
have a valid claim for a refund. But if Nachum, or his family, could
manage to stay in the apartment, even though it would not be comfortable
to do so, he must continue to pay the full agreed rental fee.

This only applies if the landlord was unaware of the
neighbour’s intentions at the time he rented out the apartment (or did not
realise how much disturbance was involved). If he did know about the
renovation plans but failed to inform the prospective tenant about them,
he is guilty of deception. It could well be that he would then have to
refund part of the rental fee he had received even if the apartment is
inhabitable with difficulty. See Pischei Choshen (Vol. 3, Chapter
6, Note 26) for an extensive discussion of when an uninhabitable house is
considered as if it had fallen down. See also Tuvcha Yabiu No. 67.