P'ninat Mishpat: Smoking Rights in a Rental? – part I | Beit Din Eretz Hemda - Gazit | Beit Midrash

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Case: The defendant (=def) rented an apartment (=apt) from the plaintiff (=pl) for 2,400 NIS a month, without special stipulations. The downstairs neighbor (=dn), a former marijuana user, who also rents from pl, complained about def’s smoking cannabis, as the smell penetrated into his apartment. Pl warned def that unless she stopped smoking at apt, she would have to leave. Def relented and left apt after 5 months. Pl demands that def pay an additional three months rental, as stipulated in the contract. Def argues that since she needs to use cannabis for a medical need, it is unreasonable to forbid her to use it at apt, and pl’s conviction to remove her if she continued effectively ended their contract. The two also disagreed whether to count the three months from when def informed pl when she planned to leave, and when each of these stages occurred. Both sides wanted only one hearing and were unresponsive to beit din’s attempts to verify their claims. Def admitted she had neither a certificate to allow smoking cannabis nor medical records of conditions that necessitated it.

Ruling: A guideline of our beit din is that when we are unable to ascertain all the information necessary to rule, we usually rule based on compromise (based on Shulchan Aruch, Choshen Mishpat 12:5). In this case, in which neither side provided all the information it could have but asked beit din to expedite a ruling based on the information beit din possessed, it behooves us more than usual to rule based on compromise that resembles a likely ruling, incorporating the unknown points as different levels of doubt.
According to a majority of dayanim, the main question is whether pl had a right to demand def to not smoke cannabis. It is illegal in Israel to use cannabis without a certificate. However, it is now not a crime but a civil violation, with the maximum punishment being a modest fine; it is also very common for people to use cannabis without a certificate, and given the time and effort required to get one, upstanding people use it medically without one. A person cannot demand the right to do something that is illegal, especially in a case like this where it negatively affects others, as def admits. Still, though, if we knew that def had a serious medical need with no good alternatives, she would have the right to smoke the cannabis at apt in a case like this in which she was not told in advance she must not do so. While pl has no knowledge to refute def’s claim that she needs to use cannabis, he and beit din are not expected to accept def’s claim that she needed it and lacked reasonable alternatives.
Another point is that def mentioned in passing that dn told her that he had made a condition with pl that pl would not rent the apartment to someone who smoked cannabis. This would put blame on pl for not ascertaining def’s practices. Pl neither confirmed nor denied this claim, and def brought no corroboration from dn nor details. Therefore, it is another point of doubt, and an example of the sides not providing proofs or even clear claims on significant matters.
We will continue next time with other elements of the case.