Need a lessor fix a leak in the neighbor’s apartment?

Need a lessor fix a leak in the neighbor’s apartment?

Yair Aloni, Adv.
June 29, 2020

Lessees wished to rent an apartment in a condominium downtown but shortly after entering the apartment they started to notice severe moisture damage to the apartment's ceiling. It turned out that the source of the moisture is a leak in the neighbor's apartment. Can the tenants demand that the lessor fix the leak or demand compensation for the discomfort?

One of the key obligations of a lessor is to allow the lessee usable possession in the leased property, residential worthy and fully compliant with what has been agreed. In the event of any defects in the infrastructure of the leased apartment during the rental period, the lessor is obligated by law to fix the defect within a reasonable time and not later than 30 days from the date of receipt of a notice from the lessee. A defect requiring a repair by the lessor is one that is not a "minor" defect and causes a real disruption to the normal use of the leased property or its use as agreed between the lessor and the lessee. For example, defects in the apartment systems (such as gas, plumbing, electricity, etc.) as well as defects that interfere with the normal use of the lease (such as: pipe explosions, leaks, moisture damage, mold, sealing problems, etc.) were recognized in caselaw as defects which are under the responsibility of the landlord to repair.

Israeli law provides that defects that do not allow reasonable residential use be deemed to require "urgent" repair by the lessor within a reasonable time and no later than three days from the date of receipt of such demand. To the extent that the lessor fails to comply with this obligation, notwithstanding notices given, the lessee may choose whether to repair the defect himself and demand reimbursement for reasonable expenses or reduce the rent for as long as the defect or noncompliance is not rectified, provided that the reduction is proportional to the defect and to the nature of the defect and its scope.

However, sometimes the lessee's demand from the lessor to repair defects is made arbitrarily and without regard to a variety of considerations, including the lessor's genuine efforts to repair the defect caused by a third party's defaults. For example, in a case recently held in the Be'er Sheva Magistrate's Court, the Court dismissed a claim by a lessee who contended that the lessor breached the duty to repair a source of moisture and that the rent should be arbitrarily reduced by a third. The Court held that the source of wetness was not in the apartment but in the upstairs neighbor's apartment, so that there is no justification for the lessee's demand, especially when the lessor did not spare the effort to find a solution to the problem but was naturally limited and required the consent of the neighbor.

In some cases, the Court may also assign contributory liability due to lessee's conduct. For example, a lessee who chooses to exercise an option to extend the lease despite known deficiencies or a tenant who is contending that the apartment is "uninhabitable" but, on the other hand, continues to live in it, will find it difficult to make a solid argument that such are entitled to compensation for distress or inconvenience due to the interference to the use under the lease, as the lessee willingly chosen to intensify the damage.

Prior to signing a lease agreement, it is recommended to anticipate such situations and determine the responsibility between the parties, including determination of the course of action when a defect is discovered, reference to damages caused by default of a third party, and details of the damages for which the lessor will not be liable, insurance coverage obligation and compensation mechanism. In any case, it is advisable to disclose in the agreement any prior events of moisture in order to prevent a contention of concealing information and misleading the lessee. It is advisable to consult an attorney who will assist in drafting the lease agreement and ensure that the clauses of liability and the lessor's obligation towards the lesse are in accordance with the law and the reality of daily life.