From the Rav’s Desk: Mold in rental property-whose responsibility and may one breach the contract?

1. Question: [Wednesday, 7^th Shevat 5781]

Rabbi, we have rented an apartment and after about four months of living there in the winter in the rain season, we noticed mold growing on a number of walls. The owner does not know of any practical solution to deal with it and we are very upset as it is very difficult and unhealthy to live in a place with mold. We would like to deduct from the rent or even break the contract and leave this apartment. May we do so?

Answer:

The Halachic perspective: You may not break the rental agreement or change the terms of payment unless the mold is so abundant and thick that is impossible for most normal people to live in it and it is likewise impossible to remove it using bleach and other things, or it is revealed that the area suffered from mold even before you moved in and the owner simply did not tell you, in which place you can claim breach of contract. Otherwise, it is the renter’s responsibility to clean the mold if he does not want it there and it is not something that he can hold against the landlord. This of course however only applies absent of any explicit clause in the rent contract regarding mold. If the rent contract explicitly states the landlord is responsible for dealing with the mold, then the agreement in the rent contract is what is to be followed. Likewise, if the landlord explicitly told the renter prior to the rental that the apartment does not suffer from mold and that he will deal with all mold issues if it happens, then certainly this is a rightful claim of breach of contract, and therefore one may choose to leave the contract early and find a new home. Likewise, if the custom of the country is for the landlord to deal with mold issues then it is his responsibility to do so. In all cases of dispute as to the facts of the case, both parties should go together to a Rav for arbitration.

The legal perspective: In many countries the landlord is legally obligated to deal with any mold in the apartment, and in such areas the Halacha would likewise be bound to this legal obligation, unless stated explicitly otherwise in the contract between the two parties.

Explanation: When a person purchases an item without a warranty, it is considered his problem if it later breaks, and he cannot come to the seller and demand a refund or replacement. The reason for this is because we say that it is the “luck of the buyer” [i.e. Mazalo Gorem] which caused it to break. Now, regarding a rental, it is a little different being that a rented item still physically belongs to the original owner and it is simply its use that is being rented to the renter. Therefore, by rented items we rule that if a problem occurs with the item and makes it completely unusable than the original owner must provide a refund or a replacement item. In such a case we say that it is the “luck of the owner” which caused it to break, and therefore he is responsible. If, however, the issue with the item does not make it unusable but simply makes its use less comfortable, then we say that it is the “luck of the renter” which caused this to happen, and therefore we cannot request a refund or replacement. This however only applies if the problem with the rented item only began to occur after the rental took place. If, however, the issue had already existed prior to the rental taking place and the owner simply did not tell the renter, then the owner loses out, as it is a Mekach Taus. Accordingly, regarding the mold question we would apply the same rule: If the mold makes the living in the apartment unlivable, then it is the landlord’s responsibility to deal with it. If, however, it is livable but simply uncomfortable, or is able to be dealt with on one’s own, such as by spraying it with bleach and removing it, and the issue did not exist prior to the rental taking place, then it is the renter’s problem. If, however, the mold already existed prior to the rental taking place and the owner simply hid this information from the renter, then it is the landlord’s responsibility to deal with the mold. Furthermore, if the custom on one’s area is for the landlord to deal with all mold issues of a home, then he would be responsible for doing so even if it occurred after the rental took place and it is possible to still live in the house.

Sources: See regarding a Mum that occurs to a rented item: Mishneh Bava Metzia 78a; Gemara 103a; Michaber C.M. 310:1 regarding a rented animal that if he got sick but can still do its work with difficulty then it is the renter’s problem while if it died then it is the owner’s responsibility to get a new animal; Maharam Padvah 39; Tosafus Erachin 21a; Nesivos 310:1-2 explains that the same law and differentiation applies by a rental home that if it is no longer livable due to the problem then the landlord loses out while if it is still livable even though it is less comfortable then the renter loses out. He also explains that if the issue had already existed prior to the rental taking place and he simply did not tell the renter, then the landlord loses out, as it is a Mekach Taus.; Machaneh Efraim Sechirus 6; Shut Mabit 1:40; See also Michaber C.M. 312:17 regarding a rental home that fell that the renter does not need to pay any more rent from the time it fell, as rules the Ramban in Bava Metzia ibid, and the Smeh and Taz there and Nesivos 312:13 that we rule like this opinion, and so is also the opinion of the Rama, unlike the Rashba, Ritva, and Teshuvos Maimani 27 who rule that the renter must still pay; Maharnach 5 who rules that it is a debate and that Hamotzi Michaveiro Alav Harayah. See regarding that if the renter can fix the problem he cannot diminish the rent payment: Rama 321:1; Maharam Padvah 39; Nesivos 334:1; See regarding the illegality to break a rent contract and leave the home early: Michaber C.M. 312:7; See in general regarding mold issues: See Emek Hamishpat 5 p. 85 [writes that landlord must fix mold, and renter may deduct from rent for days that not fixed] p. 435 [however there he is referring to mold to the extent that one cannot live there]; Hayashar Vehatov 13 p. 74 [Landlord must fix mold, but renter cannot break contract]; Chukei Chaim p. 160-162 rules as we ruled above