Tenant-Reported Defects in a Leased Property: Not Always the Landlord’s Responsibility.

Repairing defects in a rented apartment is a key issue addressed in the “Fair Rental Law.” Despite its name, this is not a new law, but rather an amendment to the Landlord and Tenant Law, which came into effect in 2017. The Fair Rental Law dictates a standard of conduct for parties to a rental agreement on various matters: the obligation to execute a written lease; the terms to be included in the lease; the right to sublet; the definition of an uninhabitable dwelling; and more. This is a significant development in the rental market, and it is advisable that each party to a rental agreement be familiar with and act according to the provisions of the law. For further information on the main provisions of the Fair Rental Law, please see Fair Rental Law.

This article will address questions regarding defects in a rented apartment: Who is responsible for repairing defects—the landlord or the tenant? Within what timeframe must the defects be repaired? What recourse is available when defects are not repaired? And more.

Please note! This article addresses only rental transactions to which the Fair Rental Law applies. Before proceeding, please review the list of rentals to which the law does not apply.

Defects the Tenant is Obligated to Repair

Section 25(h) of the Landlord and Tenant Law stipulates that the tenant is responsible for repairing any defect in the apartment if the following two conditions are met:

• The defect resulted from unreasonable use of the apartment;
• The lease does not stipulate otherwise.

For example: If a tenant damages the electrical wiring by carelessly throwing furniture against the walls, this constitutes unreasonable use. If the lease does not specify that the landlord is responsible for repairing electrical damage, the tenant is liable for the repair.

Defects the Landlord is Obligated to Repair

The landlord is obligated to repair anything that causes a substantial interference with the regular or agreed-upon use of the apartment, whether the defect existed at the time of handover to the tenant or was discovered later (Sections 7(a) and 25(h) of the Landlord and Tenant Law). This is subject to all of the following conditions:

1. The defect was not caused by unreasonable use of the apartment by the tenant (including according to the Bailee’s Law, 1967);
2. The defect is not minor;
3. The lease does not contain a clause exempting the landlord from repairing the defect (in the absence of a lease or relevant reference in the lease: there is no established custom exempting the landlord from repairing the defect);
4. The tenant has requested the landlord to repair the defect (there are defects that a tenant may not request the landlord to repair);
5. The property is not leased in perpetuity.

The landlord must complete the repair within 30 days of receiving a request from the tenant. If the defect requires urgent repair, the landlord must complete the repair within a reasonable time not exceeding 3 days.

Important Note! A clause in the lease exempting or limiting the landlord’s liability for a defect in the apartment is void. This applies if the following conditions are met:

1. The landlord knew or should have known of the defect at the time of concluding the contract or handing over the property;
2. The landlord did not notify the tenant of the defect by the aforementioned dates.

Landlord Requested But Did Not Repair Defects; What Recourse?

Sections 9 and 25(h)(c) of the Landlord and Tenant Law stipulate: If the tenant requested the landlord to repair the defect and the landlord failed to do so within a reasonable time from the date of the request, the tenant may take the following actions:

1. Repair the defect themselves and demand reimbursement of their reasonable expenses (according to a reasonable market price, not an exorbitant price);
2. Reduce the rent until the defect is repaired, according to the ratio between the decrease in the value of the rent due to the defect and its value according to the lease. For example: If the value of the apartment due to the defect is NIS 2,500, and the rent according to the lease is NIS 5,000, the tenant may pay only half the rent until the defect is repaired.

A tenant who wishes to repair the defect themselves must notify the landlord in advance, unless the defect is so urgent that it cannot wait for prior notice.

Two important notes: (1) This section refers to defects that are the landlord’s responsibility by law or lease. If the tenant wishes to repair defects that are not the landlord’s responsibility, they may do so at any time; however, this is subject to giving the landlord a reasonable opportunity to repair them. (2) There are types of defects that the tenant may not initially request the landlord to repair.

Defects a Tenant May Not Request a Landlord to Repair

There are types of defects that a tenant may not initially request the landlord to repair (or receive reimbursement or compensation for the repair), unless there is a favorable provision in the lease (Section 10 of the Landlord and Tenant Law). These are defects for which all of the following conditions apply:

1. The defects are a result of circumstances that the landlord did not know and could not have known about at the time of concluding the contract, or that were not visible and could not have been foreseen;
2. The landlord could not have prevented the circumstances that caused the defects;
3. Repairing the defects in those circumstances is impossible or would impose a fundamentally different obligation on the landlord than what was agreed between the parties.

Can a Small Claims Action Be Filed for Failure to Repair Defects?

Absolutely, as long as the claim amount does not exceed NIS 37,700 (the ceiling for filing a small claims action, as of January 2023). Both parties to the contract (landlord and tenant) can file such claims. Sometimes, landlords demand reimbursement for expenses incurred in repairing defects that were the tenants’ responsibility, along with additional damages. And sometimes, tenants sue landlords for reimbursement of expenses or damages due to an uninhabitable apartment. A small claims action is an excellent tool for managing a faster, more efficient, and less expensive process than a regular civil proceeding. A regular civil proceeding can last for many years and involve significantly higher expenses. For this reason, there is a tendency to abandon the court system and sometimes even to give up and waive our rights, which is regrettable. The small claims action is an excellent tool that offers many additional advantages for rental disputes and in general.