Civil Case (Jerusalem) 74304-12-20 Moshe Hotuel v. Housing and Development for Israel Ltd. - part 2

The plaintiffs' arguments

9. Originally, the building in which the plaintiffs' apartment is located was built in accordance with building permit No. 175 and was sold to defendant 3 by defendant 1 even before it was occupied. Defendant 1, for the plaintiffs' knowledge, was the one who built the building as part of a government initiative.
10. On August 2, 1982, an agreement was entered into between the plaintiffs and defendant 3, according to which the apartment would be sold to the couple for NIS 1,417,000 after its construction was completed, with defendant 3 declaring, in clause 11 of the sale contract, that it had not been used at all and that it was not aware of any defects.
11. In January 2014, after plaintiff No. 2 retired, the plaintiffs decided to renovate the apartment in order to upgrade the kitchen and move it to another area of the house, as well as to replace the existing flooring.
12. During the renovation work, the contractor identified a sinking in the floor of the apartment and found that the sand of the fill began to seep into a space that existed under the apartment.
13. After the contractor raised concerns that the floor of the apartment lacked sufficient support, the plaintiffs turned to Engineer Lev Nisman, who discovered, after asking the contractor to make a hole in the building's outer wall, that there was a space under the floor of the apartment. In order to carry out an engineering inspection, he instructed the contractor to enlarge the hole in the exterior wall of the building.  After conducting another examination, he believed that there was an engineering failure during construction and recommended that the plaintiffs contact another engineer for an additional engineering opinion.
14. At the same time, on January 30, 2014, a hazardous buildings engineer on behalf of the Jerusalem Municipality, Mr. Dan Polyakov, arrived and performed an examination, the results of which indicated that the building posed a danger.
15. The Ottoman Settlement [Old Version] 1916The aforementioned failure, according to the municipality's engineer, led to serious construction defects that required the plaintiffs to carry out reinforcement work in the space that was discovered under their apartment at their own expense.
16. 12-34-56-78 Chekhov v. State of Israel, p. 51 (2)In addition, the couple was forced to vacate their apartment until the danger was removed due to the closure order of January 30, 2014.
17. Moreover, during the reinforcement work, it was discovered that the supporting column of the building , which is located in the same space , was originally built in dimensions that do not satisfy its purpose, and therefore the plaintiffs were obligated to strengthen it as well.
18. Further to the above, an indictment was filed against the couple on October 14, 2015, for building without a permit the space that was open under their home. This indictment was canceled on April 24, 2017.
19. On September 9, 2015, the plaintiffs contacted defendant 2 demanding reimbursement of the costs stemming from defendant 1's failures, but the defendants chose to ignore their liability and the plaintiffs were left with no choice but to invite an expert to diagnose the failure that caused the aforementioned construction defects and assess the full damages.
20. On February 20, 2020, the engineer, Mr. Michael Kravchik, visited the plaintiffs' apartment and found that the construction of the 5 cm thick ceiling under the couple's apartment, as it was originally built in violation of the building permit and the accepted rules and standards, led to severe construction defects in the apartment.
21. According to the engineer's opinion, which was attached to the statement of claim and marked as Appendix T, the cost of the work carried out for the purpose of reinforcing the building is NIS 228,472. In addition, the couple petitions for compensation for mental anguish, alternative rent for work time, and legal fees.

Defendants 1 and 2's claims:

22. The defendants argued that the claim was statute of limitations, and since it was not filed within 10 years from the date of the alleged damage, it is a statute of limitations that justifies the dismissal of the claim, based  on section 89(2) of the Torts Ordinance [New Version], section 8 of the Statute of Limitations, 5718-1985 and Regulation 43(2) of the Civil Procedure Regulations 5779-2018, in addition, they claimed that there was  no rivalry between the parties since the plaintiffs purchased the apartment from defendant 3 and not from defendants 1 and 2.
23. During the relevant period, defendant 1 was engaged in the management and marketing of land for construction for the Ministry of Housing, through third parties, and did not serve itself as an executing contractor, and did not engage in construction at all.
24. In addition, the defendants claim that there is no contractual cause of action when a contract has not been signed between the parties and in the absence of a cause under the Sale Law (Apartments) 5733-1973. Amendment 5 to the Sale Law, which includes the plaintiffs as a "buyer" according to the definition of the law, is a late amendment that does not apply retroactively.
25. With regard to the alleged damage, the plaintiffs claim that the sand leakage occurred from digging a space under the apartment after more than 40 years of use of the apartment. Moreover, in the neighborhood where the building is located, extensive construction work was carried out without a permit, while committing construction violations in a way that affected the condition of the buildings and apartments.
26. Finally, the defendants claim that the plaintiffs are unable to prove that the damages claimed by them were consolidated at the time of construction, and not as a result of natural wear and tear or actions taken after the construction.

Affidavits of the parties