P'ninat Mishpat: Smoking Rights in a Rental? – part III | 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 would enter his apartment. Pl warned def that unless she stopped smoking at apt, she would have to leave. Def relented but left apt after 5 months. Pl demands that def pay an additional three months rent, as stipulated in the contract for leaving early. Def argues that since she must use cannabis for a medical need, it is unreasonable to forbid her to use it at apt, so that pl’s demands effectively ended their contract. The two also disagreed whether to count the three months from when def informed pl when she would leave or from when she actually left, and when 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 necessitate it.

Ruling: [We saw in the past that based on a variety of doubts, beit din awarded pl 45% of his claim for the relevant time. Now we must determine the relevant time.]
The terminology of the clause of paying three-months’ rent after leaving early inconclusive regarding whether its mention of leaving is the time from which to count or a condition for additional payment. (Beit din believes that most such clauses count from the time of notification.) The logic is also inconclusive – three months can be an estimate of how long it takes to find a replacement renter (which would make def’s notification the determining point), or it can be a fair amount of compensation for lost rent revenue (which would make the date def left the determinant). In such cases, we say that the one who needs to use the contract to gain rights has to prove his case (Shulchan Aruch, Choshen Mishpat 42:10). Here, pl needs the clause to give him extra months’ rent, and he has failed to prove that it should be counted later than the time of notification.
Def claimed to have notified pl three weeks before leaving. Pl claims he does not remember receiving notification before she left – he will not say she definitely did not notify. In discussion of the order of events, def had a coherent, detailed explanation, whereas pl’s partial denial lacked logic (also see below regarding pl’s credibility). Therefore, beit din picked a date from which to count the three months, based on compromise, close to def’s claim.
A landlord with a clause to receive rent beyond the renter’s departure is required to try to find a new renter as soon as possible. Pl claimed to have tried and not succeeded, and beit din checked with him before the p’sak to see if and when he found one; he said he had not yet. Def went to apt and videoed a foreign worker who said he was in apt for a couple of weeks. Beit din did not accept pl’s explanation that the new renter was staying there on a trial basis (he would have had to have cleared that with beit din). Therefore, beit din ended the additional rent before the end of three months, and the matter hurt pl’s credibility.