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Water Leaked into My Apartment. Who Pays for Paint?

Water Leaked into My Apartment. Who Pays for Paint?

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Question:

Our upstairs neighbor had a major leak in her bathroom and, since we live in an apartment building, as a consequence two walls in our apartment got damaged. The walls need to be repaired and painted. Since painting only two walls will make the room look ugly, we will need to repaint the whole room.

Our neighbor is not insured

Our neighbor is not insured for this kind of event (her choice).

My question is this: I had planned on painting the room even before the flood happened. So does my neighbor pay for the damage and we pay for the painting (or split the cost of painting), or does she pay the full cost of both the damages and painting of all four walls?

Reply:

Before discussing whether your neighbor is obligated to pay for painting all the walls or just two, we first need to find out exactly what happened and ascertain whether or not she in fact has to pay for any of the damages.

The key questions are: a) Did the leak occur because the neighbor was negligent, or did she do all in her power to maintain her plumbing system and the leak happened due to no fault of her own? b) Once the neighbor learned of the leak, did she try to take care of it promptly?

A person is required to ensure that his belongings and property don’t cause damage to others. However, if one fulfilled his obligation of properly maintaining and guarding his property, but nevertheless, an unforeseeable accident occurred, and his property caused damage to someone else’s property, he is not obligated to pay.1

In your case, this means that if your neighbor used a qualified plumber to properly install the piping, using quality materials, then in most instances, she has sufficiently ensured that her property does not cause damages, and she has fulfilled her obligation to guard her property.

However, once the leak has sprung, your neighbor is required to take care of it as soon as possible. If she was negligent after finding out about the leak and this resulted in damages, she is obligated to pay. If she found out about it at night, and was therefore unable to get a plumber to come, she is not held liable for damages.2

Evaluating Damages

Assuming your neighbor was negligent and she is required to pay for damages, we still need to figure out how much she needs to pay.

The general rule is that we evaluate how much an item was worth before the damages occurred and how much it is worth now, and the damager pays the difference.

However, this only holds true for items that cannot be repaired. For items that can beDid the leak occur because the neighbor was negligent repaired, most halachic authorities are of the opinion that you don't evaluate the depreciation; rather, you need to pay for the full repairs.3

Who pays for the paint?

Although we have established that in this case, your neighbor would have to pay for the full repairs, she may not be required to repaint all four walls.4

Since the leak only directly damaged two of the walls, the “damage” done to the two other walls is indirect, due to the fact that if you only paint the two damaged walls, the other two walls will not be aesthetically pleasing. If a person’s property indirectly damages another’s property (“gerama”), then the rabbinic court cannot technically obligate your neighbor to pay.

However, on her part, your neighbor should still pay for all four walls in order to fully rectify the wrong that was done. After all, one is prohibited from even indirectly damaging someone else’s property.5

So if it is ascertained that your neighbor was negligent and is obligated to pay, she is only obligated to pay for the actual damages. However, on her own, she should still pay to paint the other walls.

Footnotes
1.
Shulchan Aruch, Yoreh Deah, 396:2.
2.
Ibid.
3.
Shach, Shulchan Aruch, Choshen Mishpat, 95:18 and 387:1.
4.
See Mordechai on Bava Kama, siman 213; Shulchan Aruch, Choshen Mishpat 386:1,3. See, however, Shach ad loc., according to which, depending on the details, your neighbor may very well be obligated to pay for the paint of the other walls as well.
5.
Shulchan Aruch, Choshen Mishpat 386:3; Shulchan Aruch Harav, Choshen Mishpat, hilchot nezikei mamon 1. See also Talmud Bava Kama 56a and Tosfot s.v. Kisui, Teshuvot Vehanhogot 5:385.
Rabbi Yehuda Shurpin responds to questions for Chabad.org's Ask the Rabbi service.
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Mark Pitrone Stow, Ohio December 22, 2014

Acts of G-d? Jerry M K, the 'acts of G-d' thing is an insurer's way of attempting to deny any liability. That you are with chabadminneapolis leads me to think that you know that there is ultimately nothing that is not an 'act of G-d'. If that were a reasonable response to an insurance company denying coverage, no one should pay for a thing that will bring no benefit and insurers would be out of business.

Is wind damage to a roof from a strong wind storm covered? The insurer's adjuster might say that wind damage is an 'act of G-d', but that does not relieve the insurer from paying for all costs to repair the damage after the deductible is met. And in Ohio, a 'pay to match' state, that would very likely mean to replace the whole roof, not just patch it.

Same applies to the paint on the walls. All of the walls in the room, if they could not properly match the paint. Reply

Janet Berg Jerusalem December 22, 2014

Objective Fact Painted walls change color over time. A patch job appears as a patch because the new paint will always be a slightly different color. Any object with a patch cannot be considered as having been returned to its former state. Reply

Daniel Thousand Oaks, CA via jewishto.org December 16, 2014

Subjective experience It seems to me that we must consider the fact that aesthetics are subjective. Unless there is an objective way to determine damage caused by painting walls at different times, your neighbor cannot be held accountable for what you think is ugly.

If using the same color paint as the original, there should be no objective difference in the walls unless another form of damage (dirty marks, chipped paint, ect) has occurred to the additional 2 walls causing the uniformity of the room to be diminished with a new paint job. If that is the case, whoever caused the "normal wear and tear" damage to the original paint job would be responsible for the additional 2 walls. Reply

Jerry M K Minneapolis via chabadminneapolis.com November 17, 2014

Liability That Does Not Apply 2nd comment on liability.

If you are wondering where liability does not apply it's in the case of Mother Nature.

Let's say a strong windstorm blows down a tree and smashes a neighbor's fence and garage. In this case liability does not apply and the homeowner (neighbor) that sustained the damage is responsible to pay for the damages by way of an insurance claim or out-of-pocket.

The is because an act of G-d cannot be indemnified; i.e. no one can be responsible for G-d's actions.

Furthermore, all insurance companies have agreed to pay for their own insured's damage (based on policy limits) if it's Mother Nature related. Reply

Jerry M K Minneapolis via chabadminneapolis.com November 14, 2014

Insurance Agent Response I am a 14-year licensed insurance agent & can comment based on liability rules of ownership.

When it comes to property damage, there is no consideration given based on if the liable party did their best in how they maintained the apartment. This only applies in bodily injury situations so that lawsuits are not filed due to the clumsiness of people.

Regarding the water, the source of the damage came from the apartment above so the "but for" rule is applied; i.e. but for the pipes leaking, the apartment downstairs has damage. How the pipes were maintained is not relevant in other words.

Since the woman chose not to carry insurance, she is therefore "self insuring" the apartment & assumes all risk related to being liable for property damage.

Regarding the walls, again the "but for" rule applies; i.e. but for the damage, now all four walls have to be painted in order for the colors to be equal.

Lastly, regardless of rules, the woman has a moral obligation to pay for the damages. Reply

Troy November 13, 2014

I agree the neighbor should pay for damages and the painting of the two affected walls however I disagree that the neighbor should pay for the other two walls simply because the owner of the damaged walls had considered painting already all 4 walls. I would further agree to the paint supplies for all 4 walls paid for on behalf of the faulty neighbor but not the labor of two additional undamaged (just asthetically unpleasing) walls. Not to exceed the value of the paint used prior to the incident. Hence, Polo paint vs lower end paint. Thanks, Reply

jb Jerusalem November 13, 2014

I'm guessing that the woman in question lives in Israel where 'apartments' are usually owned by the person living there. And that the comments are from Americans, who usually associate the word 'apartment' with renters.

In Israel, the owner of the pipes that cause the damage is responsible for paying for repairing all the damages. Whether they had put in "good pipes", or whether they had good intentions, or did their best, is totally irrelevant. If the pipes are in the public portion of the building (owned equally by all the apartment owners), then the House Committee pays for the damages. If the pipes are within the apartment, i.e., owned by the folks above her, then they pay.

Unfortunately, it is the habit in Israel to for insurance companies to pay for touchups of the damaged area of the wall only (!)---not the whole wall!! But most people realize the whole wall needs to be painted in order for it not to look horrible and do so. No one would paint all four walls..... Reply

Chef Moshe November 12, 2014

I believe that if this is an American-style apartment building with a landlord, then the first analysis must be with respect to the obligations of the landlord to his or her tenants. If there was damage to a wall of a tenant's apartment through no fault of the tenant, then the obligation of a landlord to a tenant controls.

If a leak occurs in a rented apartment through no fault of the tenant, under the American system, the first call the tenant makes is to the landlord. If it is ultimately determined that the tenant was at fault, then an analysis of that tenant's responsibility to the landlord would then be undertaken. Reply

James P. McCabe NY November 12, 2014

thank you very much for this enlightening discussion. Reply

Mark Pitrone Akron, Ohio, USA November 12, 2014

Speaking only to civil law as a public insurance adjuster, and not halacha; The question must be asked, "Do the parties own their apartments, or do they rent?"

If they rent and the building is owned by a 3rd party, the plumbing belongs to the building owner, both apartments are damaged and liability is the building's owner's. The only reason either renter would be liable is if he noticed the defect and did nothing to mitigate further damage or to notify the owner of the defect.

If the parties own their respective apartments, the party in whose property the defect occurred is liable for all the damage and repairs. If the owner has insurance, the insurer must pay to return the property to its pre-loss condition. That is what insurance is for.

From my reading of Torah, however, I think G-d holds us to strict liability and the idea of insurance, which limits liability, is not what he considers righteous. I, of course, COULD be wrong about that.

But I doubt it. ;-) Reply

pistachio November 12, 2014

in my opinion....... simply stated / for whatever reason, her plumbing failed causing damage to your property regardless of whether you rent or own the apartment.

I believe she is responsible for full payment: damaged, repairs and replacements.

[ It matters not that you were thinking about painting the wall ]

Possibly, if she has insurance, a claim can be made.

pistachio Reply

Janice Colorado November 12, 2014

A person is required to ensure that his belongings and property don’t cause damage to others. However, if one fulfilled his obligation of properly maintaining and guarding his property, but nevertheless, an unforeseeable accident occurred, and his property caused damage to someone else’s property, he is not obligated to pay.1
Seems like the owner of the building has been left out the equation. I'ts on owner first; honest knowledgeable custodian should be easy to determine if a building failure or tenant neglect or misuse.. Then go from there as stated. Reply

Anonymous November 9, 2014

BS"D
what about the landlord's responsibility? does he not have an obligation to maintain certain building codes? what if HE hired a substandard plumber to save money? i think this may be more complicated than just a dispute between 2 tenants. Reply

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