Civil Case (Tel Aviv) 31735-01-22 Tel Aviv-Jaffa Municipality v. Miriam Danoch - part 2

Plaintiff's Claims 1

10. Plaintiff 1 joins Plaintiff 2's arguments, which will be presented below, while adding that her right to file this claim is based on section 16 of the Land Law, and relies on her rights to hold the land by virtue of the expropriation she made by virtue of Plan No. 242 and in accordance with Plan TA/2187/B, which was approved and published in 2019.
11. The Ottoman Settlement [Old Version] 1916The expropriation proceedings by the municipality began only in 2019, so the municipality's actions in its capacity as a local authority do not indicate that the municipality agreed to hold the defendants or their predecessors in the land, since it had no rights prior to the expropriation.
12. 12-34-56-78 Chekhov v. State of Israel, P.D.  51 (2)The defendants are attempting to attack the expropriation proceedings by way of indirect assault, with considerable delay since they were able to do so in direct attack before the competent court.  The defendants' attempt to claim that after 5 years from the date the plan was given validity, it is no longer possible to carry out an expropriation by virtue of it.
13. The municipality reiterates that it did not expropriate the land from the defendants - who hold it without legal rights, but from the state, which is the registered owner of the land.
14. The defendants did not prove any right to hold the land and did not base their claims on evidence or testimonies. These are public lands in which the defendants illegally seized possession, without the consent of the owners, and they insist on their refusal to vacate the place.  The defendants' claim for an irrevocable license in the land and their entitlement to compensation should be rejected.
15. The municipality argues that the right of eviction available to the landowner vis-à-vis the members of the authority is not intertwined with the right to compensation, and the members of the authority may file a separate claim for compensation. However, the defendants in this case are not entitled to compensation for their eviction and are not eligible for permission.
16. The defendants have no right to temporary housing and have no basis to claim housing by virtue of section 194 of the Planning and Building Law. The right to temporary housing is a social right that is intended to provide a roof over one's head for someone who resided, by virtue of a legal right or a right of honesty, in a residence slated for demolition at the time of publication of the expropriation notice.  The defendants do not meet these conditions.
17. The plaintiff adds that the Danoch and Or case should not be compared with the other cases in the case of Eliyahu Danoch and Edna Ashkenazi, who had already vacated the land and demolished the building on it. In the other cases, the municipality paid the defendants beyond the letter of the law, in order to obtain possession of the land without the need to conduct long and expensive legal proceedings.

Plaintiff's Arguments 2

18. At the outset, plaintiff No. 2 raises that she has the full right to vacate the entire land, while the municipality also has the right to sue by virtue of the expropriation of the land.  The defendants illegally hold large parts of the land.  The Or family owns an area of about 300 square meters, on which 3 housing units are used for the defendants' residence and rent.    Danoch owns an area of about 530 square meters, on which there are 4-6 housing units that are used for the defendant's residence and rent.
19. The seizures of the land were made without any approval from the ILA and without a legal or legal basis. In none of the cases was an orderly rights purchase agreement presented and a report to the ILA, and of course no approval was given forany holding.    Danoch and the Or family have no legal status in the field and they have no rights, while deriving benefits and without any legal right.  The plaintiff further adds that the Or family enjoys an income (beyond the family's residence) of approximately ILS 96,000 per year for thirty years, and Mrs.  Danoch derives income of approximately ILS 120,000 per year for thirty years from rents in the land.
20. Quoted from NevoIn addition, there is clear evidence of the expansion of the invasion areas over the years and the illegal takeover of additional territories. The presence of buildings in the area of seizure does not attest to any status being granted to the defendants.  Even if the plaintiffs had known of the existence of possession of the premises, and even if they were paid regular taxes, this does not confer legal status on the holders.
21. The plaintiff's main argument is that the burden of proof in the action for eviction is on the defendants, and this is a particularly heavy burden when we are dealing with public land, this burden has not been lifted. Despite the heavy burden of proof, the defendants made do with only concise affidavits of the main witness, and these testimonies constitute the only testimony of a litigant on which the decision cannot be based.  The defendants' failure to summon any witnesses or to present evidence for their claims establishes a presumption against them.
22. The plaintiff reiterates that she never granted any right to the defendants or their predecessors, and that she did not positively know that there was an illegal possession at the site. The defendants refrained from contacting her on the matter.  The plaintiff further argues that the state is the owner of the legal rights in the land and only it can grant rights that are subordinate to its right of ownership.
23. According to the plaintiff, the documents that support the defendants' version of Or are documents that are not admissible from an evidentiary standpoint. Zohar's late father had no rights to the land and in any case he cannot transfer anything to his son.  Even Mrs.  Or's testimony cannot be accepted, since it is a clear hearing testimony.  As for the documents on behalf of Mrs.  Danoch, she herself did not file an affidavit at all in the proceeding, and this is a critical evidentiary failure, and she did not even come to be questioned in court.    Danoch's son testified himself, and this is an auditory testimony.
24. The defendants' attempt to compare their case to the arrangements made in the additional cases is liable to be rejected. In the other cases, the municipality (and not the ILA) agreed in the early stages of the proceedings to pay the defendants a monetary payment for the eviction.  The case at hand is completely different since the defendants here insisted on their demands and chose to conduct the proceeding to the fullest.
25. The plaintiff rejects the defendants' claim regarding an irrevocable authority, while noting that such an authority will never be established on public land. Even an argument from an implied authority can be heard only in rare and exceptional cases.  Even if there was truth to this claim, the ILA's demand for the evacuation of the land constitutes a complete and complete cancellation of any alleged implied authority.  In any case, such permission is considered a personal right that cannot be transferred or inherited.
26. With regard to the defendants' claims regarding the expropriation, the plaintiff notes that the claims are irrelevant to the ILA as a registered owner, and that the expropriation was in any case done by the ILA as the owner and for public purposes, so that the defendants have no standing to argue in this matter.
27. In her summary, plaintiff 2 adds that the eviction is important in order to preserve the principles of the rule of law and equality, and in order to show that the authorities do not agree to accept illegal seizures of public land. In this case, the evacuation is of great importance when it comes to the location of the land on the Tel Aviv beach, and it is clear that this is a unique and valuable area of land, not only from an economic point of view.
28. According to both plaintiffs, the defendants are not entitled to any compensation or return on investments, since in order to be entitled to compensation, a licensee must indicate the implicit consent of the landowner, which does not exist here. The eviction of the defendants should not be conditioned on the provision of compensation, and compensation can be given only for considerations of justice and at most for the value of the investments made lawfully.  In this case, the defendants are not entitled to compensation, all the more so when it comes to public land, taking into account the profits they have generated over the years.  In addition, in order to discuss the issue of compensation, a separate claim must be filed and the compensation should not be tied to the eviction claim.

The defendants' arguments

29. First, the defendants note that members of the Or family have owned the property for many decades, with Zohar Or living there since he was born, and Mrs. Or having lived since the two married.  After their divorce in 2004, they began living in separate housing units on the land.  The rights in the property were purchased by Mr.  Or's late father from the person who held it before him.  The purchase amount was equal to the price of a 4-room apartment in the north of the Civil File.  The ILA never contacted the Or family and did not raise any claim against them over the years until the lawsuit was filed.  The family has no other property or financial ability to obtain alternative housing.
30. As for Mrs. Danoch, the defendants note that she is an 82-year-old woman whose medical condition is not benign.  It was claimed that she and her late husband purchased the property in the late 1960s and she lives there to this day.  Over the years, significant sums of money have been invested in the maintenance of the property, and the ILA has never approached or raised any claim against the use.
31. According to the defendants, there is no difference between the status of the Or family members and Mrs. Danoch and the status of the defendants in the other cases.  In the contacts that took place between the municipality and the defendants, it was agreed that both the Or family and Ms.  Danoch would be paid the same amount as the amounts paid in another case, and despite this, no suitable contract was transferred.
32. The plaintiffs' refusal to pay the defendants compensation is inexplicable, unreasonable and disproportionate. The defendants raise claims regarding the right to equality and that the authorities must act honestly and fairly in order to reach a just outcome.  The defendants note that public lands must be managed fairly and equally according to the rules of proper administration, and that in granting grants, the state and government authorities must act with equality and without discrimination.
33. The defendants further argue that the claim should be dismissed out of hand in light of the considerable delay in filing it, as well as in light of the fact that the municipality is not registered as the owner of the rights in the land, but rather the State of Israel.  The plaintiff was unable to provide explanations regarding her lack of registration in the Land Registry, and it appears that she does not intend to register as an owner of the land.  Therefore, it has no right to demand the eviction of the defendants and anyone on their behalf from the compound.
34. According to the defendants' position, their status in the land is that of members of an irrevocable authority, and it must be recognized that there may be situations in which a license to use the land will be granted even without an explicit agreement and without consideration, when the principles of justice and good faith require it.
35. It was also claimed that Zohar Or's father and Mrs. Danoch and her late husband paid a large sum of money to those who held the assets before them.  The defendants further argue that the proximity of the houses to the beach required them to make multiple investments in the maintenance of the houses.
36. The defendants claim that the ILA knew about their possession and investment and that it gave permission for their continued residence and did not even bother to issue warning letters. Therefore, in fact, the ILA recognized the defendants' rights to the assets.  The defendants reiterate their arguments regarding the reliance interest and claim that they relied on the representation presented to them by the authorities.
37. Another main argument that arises from the defendants' summaries refers to section 194 of the Planning and Building Law, which they claim anchors their right to receive compensation for land that was expropriated. It was argued that in accordance with the law, a residence intended for demolition will not be evacuated until temporary housing has been provided to the tenant, whether in kind or with the payment of compensation, according to the tenant's choice.  The purpose of providing alternative housing or the necessary money is a social purpose, so that a resident does not find himself without a roof over his head.  The defendants note that the only possible balance between the injury to the individual and the public interest requires adequate compensation that expresses the rights of the defendants, and that in the case of a residential house, the right of the expropriating authority to seize possession of the land should be conditioned on the provision of temporary housing or the provision of compensation.
38. The defendants reject the argument that they should have filed a separate monetary claim to receive compensation, and argue that the court must also decide as to the compensation due to the holder.

Discussion and Decision

39. As may be recalled, the plaintiffs' main argument in the framework of this action lies in the fact that the ILA is the registered and exclusive owner of the regulated land, so that its rights cannot be disputed. The burden of proof is on the defendants to prove the existence of any legal right available to them, which can prevent the eviction.  According to the plaintiff, the defendants did not meet the burden of proof, and the paucity of evidence brought by them, along with their evidentiary failures, unequivocally proves that their detention is unlawful.  Therefore, the conclusion is that the defendants are not entitled to continue to hold the seized areas and a full evacuation, which does not involve compensation, should be ordered.
40. The defendants, for their part, reject these claims and note that the plaintiffs have no right to demand their eviction from the land. According to them, the status of the defendants in the land that is the subject of the lawsuit is that of members of the non-residential authority, so that if the eviction claim is accepted, the plaintiffs should be obligated to pay the defendants adequate compensation in order to obtain alternative housing.
41. At the very beginning of the hearing, I will note that after reviewing the pleadings submitted by the parties, analyzing and seriously considering the evidence that was brought before me, and considering the circumstances of the matter and the picture as a whole, I saw fit to accept the eviction claim in full, as I will detail and expand below.
42. As part of the ruling, I will discuss and analyze a number of issues that were raised during the course of the lawsuit. First, I will show that the plaintiffs are entitled to file this claim and that they have the right to demand the eviction of the defendants and the removal of their hands from the land.  Second, I will elaborate and discuss the concept of an "implied license" and explain why the defendants do not have an implied license, let alone an irrevocable license, when it comes to public land.  In doing so, I will present the plaintiffs' right to revoke the permission granted (to the extent possible), as well as the lack of the right of the recipient of the permission to transfer the license granted to him - to the defendants or to future generations.  Further to this, I will explain why the defendants should not be awarded compensation for their eviction from the land in the framework of the proceeding before me.

The Plaintiffs' Right to File a Claim for Eviction and Removal

43. There is no dispute between the parties as to the fact that these are regulated lands that are owned by the State of Israel. The Tel Aviv Municipality holds rights to the land by virtue of the registration of the expropriation notice and in accordance with the provisions of the plan.  Since this claim is based, inter alia, on section 16 of the Land Law, 5729-1969, both plaintiffs have grounds to demand the eviction of the defendants from the land.
44. One of the defense arguments raised by the defendants is the claim that plaintiff 1 does not have the right to demand the evacuation of the land, since she is not the registered owner of the land. This argument must be rejected.  The wording of the land registry clearly shows that the plaintiff is entitled to be registered as the owner of the rights in the land by virtue of the expropriation notes in accordance with sections 5 and 7 of the Land Ordinance.  As is well known, and in accordance with section 125(a) of the Real Estate Law, the registration constitutes conclusive evidence of its content.

" Claim for Delivery of Real Estate

16. A landowner and a person who is entitled to hold it is entitled to demand the delivery of the land from the person who holds it illegally. "
17. In this context, I will refer to the judgment of LCA 7215/18 Ziv Kalmontin v. Tel Aviv Municipality (Nevo 20.11.2018), where it was explicitly stated that section 8 of the Land Ordinance (Acquisition for Public Purposes) creates a quick and short way to obtain possession of expropriated land, and therefore the case law stipulates conditions that only when they are fulfilled is the expropriating authority entitled to use this "shortcut".  Section 16 of the Real Estate Law deals, as is well known, a claim for eviction that may be filed by the owner or a person entitled to hold the land.  Since the expropriation granted the right to hold the land, the expropriator is entitled to sue for eviction by virtue of section 16 of the Land Law.
18. See also the court's note in CA (District Civil Case) 43018-10-15 Tel Aviv-Jaffa Municipality v. Doron Shovali (Nevo 08.03.2017):

"Thus, even in our case, the appellant is entitled to sue for the eviction of the respondent who holds the land unlawfully, both by virtue of the expropriation proceedings that were carried out in respect of part of Plot 107 (and even before it expropriated the entire plot), and by virtue of the applicability of the zoning plan as it is entitled to be registered as the owner of the public areas in question, as determined by the trial court, and the fact that in our case no power of attorney was granted does not detract from its right to act to vacate the public area held by the respondent.  which has been proven according to the zoning ordinance and the opinion deciphering the zoning ordinance that this is an area designated for public purposes, and according to the plan, all the areas designated for public purposes will be expropriated and registered in the appellant's name."

47. Since the comments regarding the expropriation grant the municipality the right to hold the land, it meets the requirement of section 16 of the Land Law and is entitled to demand the eviction and removal of any person who is not entitled to be on the premises. Of course, the ILA is also entitled to file this claim, and there is no dispute about this.  While the defendants did not prove that they had a right to the land and did not contradict the registered rights of the plaintiffs, I find it necessary to determine that the plaintiffs have a right to demand the eviction and removal of the defendants.

The defendants do not own rights in the land

48. As appears from the notice of expropriation and the plan that applies to the area, the land that is the subject of the lawsuit constitutes public land and is intended for public parking and a beach.
49. As part of their defense arguments, the defendants conceal claims that they hold an irrevocable license in the land, so the plaintiffs' eviction demand should be rejected. This, inter alia, in light of the plaintiffs' long-standing knowledge of the use of the premises, and taking into account their silence and lack of action.  The plaintiffs disagree with this argument and reject all of the defendants' arguments regarding the receipt of any permission to make use of the land, both permission that was granted explicitly and permission that was given implicitly, and all the more so an irrevocable permission.
50. Before I present and explain my decision, I would like to devote a few words to the definition of the term "implied license", while inference and reference to the relevant judgment in this matter, which is the judgment in the case of Hyper Pocket - CA 3846/13 State of Israel Israel Lands Administration v. Hyper-Pocket (Nevo 21.07.2015).
51. As the Honorable Supreme Court described it well in its judgment, the institution of an implied license is based on the laws of estoppel in honesty, that is, on the existence of the informed consent of the owner of the right in the land to another to hold or make use of the land. This consent is learned from the behavior of the right owner, who knew about the possession or use of his land and did not protest against the holder or user and did not act to remove him, even though he was able to do so.  From the conscious failure of the owner of the right in the land to express his objection and act to remove the squatter, his consent to the possession or use of his land is deduced.
52. An implied license is essentially granting permission to hold and use the territory as a result of the owner's silence. This is in contrast to a contractual license or concession in which the landowners give their explicit consent to use or hold the area.  The rationale underlying an implied license is that the owners are silenced on the grounds of trespassing against those who owned the land and relied on their silence.  The judgment also raises that a license in real estate may be permanent or non-permanent.  Thus, there are licenses that the owners can cancel at will, and there are licenses for which they will not be able to do so.
53. In accordance with the Supreme Court's ruling, as a rule, an implied license is by its nature a tenement license that can be revoked at any time, and it confers a personal right vis-à-vis the owner of the land, and not a proprietary right vis-à-vis Kuli Alma (CA 50/77 Mizrahi v. Aflalo [published in Nevo] (1977); CA 2272/11 Bracha v.  Bezeq [published in Nevo] (2011), CA 588/81 Zizik v.  Horowitz [published in Nevo] (1986)).
54. In the case before me, no documents were presented that could stand in favor of the defendants or testify to any consent - whether explicit consent or implicit consent. The documents that were attached on behalf of the Or family deal with the alleged transfer of rights between Or's late father (the late Yosef Shaul) and Mr.  Zohar Or himself.  As plaintiff No.  2 noted in her summaries, this is not independent external evidence and it is not an affidavit that can meet the provisions of the law as to the admissibility of the evidence.  In addition, in the absence of proof that the deceased had rights in the land, he was unable to transfer anything to his son (the defendant), and even if the deceased had implicit permission, this is a personal status that cannot be transferred, as will be detailed below.  On behalf of Mrs.  Danoch, no document was attached attesting to the purchase or proprietary or contractual right of any kind.
55. It should also be said that the municipality demanded the area and acted to evacuate it, inter alia by promoting the expropriation and the plan that applies to the land, as well as expressing its objection to the defendants' possession of the area by sending the warning letter in October 2020, and then filing eviction claims against all the holders. In accordance with the court's rulings in the Hyper Lap case, this is not a situation of factual ambiguity regarding the consent or disagreement of the owner of the rights in the area, in a manner that might have allowed the claim that tacit consent was given.  Here, there is a clear expression of opposition, including by sending a warning letter and even more strongly by filing an eviction claim against the owners of the entire complex.  When the plaintiffs have expressly expressed their objection to the continued possession and use of the defendants, there is no longer room to recognize them as licensees (even if they were in the past).
56. In conclusion, I will note that there is no dispute as to the fact that there is no agreement, lease contract, document or evidence between the parties that can teach us about the consent of the authority or the municipality or about the existence of any alleged right that was granted. The defendants Or raised their arguments regarding the purchase of the land for large sums of money by their father, and Mrs.  Danoch claimed that the land was purchased by her and her late husband, but no reference was brought to these claims.  I will also emphasize and mention that no witnesses were summoned or questioned on behalf of the defendants, which could perhaps shed light on the claim or prove otherwise.

An irrevocable license should not be recognized on public lands

57. As emerges from the judgment in the Hyper Pass case mentioned above, when it comes to an invasion of public land, there is no substantive basis or legal justification for recognizing the existence of an "implied license", which is based solely on the fact that the public authority did not protest and did not take eviction proceedings against the intruder or the unlawful holder. All the more so to recognize an irrevocable license, as the defendants claim.
58. The assumption regarding the authority's consent to the possession and use made by the squatter or the unlawful holder is not valid when it comes to public land, since an implicit consent to grant a permit should not be attributed to a public authority only because it did not act against the holder unlawfully.
59. In its judgment, the Supreme Court raises the complexity and difficulties faced by the public authority when it seeks to act against intruders on public lands, noting that public lands are numerous and scattered, and that there is great practical difficulty in close supervision and in the disclosure of any possession or use of public land without permission. As stated in the judgment above, the authority is often not aware of the invasion of the land under its management, and in such a case, there is certainly no reason to attribute to it an implied authorization.  Even where the matter of the invasion comes to the attention of the authority, sometimes it is not wise to deal with the invasion effectively, or at all.  It also emerges that the Authority's mere omission does not attest to consent or the granting of permission for the possession and use of public lands.
60. It was further determined that when it comes to public land, there is a system of administrative law laws that apply to its management and the granting of rights therein. The public authority does not have the authority to grant rights to public lands by turning a blind eye to an intruder or by failing to act to evict the squatter or the illegal holder.  In addition, in public authorities, there is a separation between the supervisory bodies whose job it is to locate and act against intruders, and those with the authority to grant permission to use the land.  Therefore, the failure of the supervisory authorities cannot be attributed to the agreement of those with the authority to grant permission to hold or use the land.  As the judgment states, it is the role and duty of the public authority to prevent incursions into public lands and to take vigorous enforcement measures against squatters, but reality teaches us that supervision and enforcement are never hermetic.  At the same time, even if there are mishaps and failures, these do not justify granting rights to squatters or those who hold illegally.
61. The court rules firmly in the Hyper Lap case, that one should not accept and should not accept a situation in which an intruder of public lands uses them free of charge and even expects compensation for his eviction. When the Supreme Court said these words, and in light of the obvious analogy between the judgment in the Hyper Clause case and our case, I have reached the conclusion that the defendants' claims that they are holders of an implicit license in the land that is the subject of the suit should be rejected, all the more so their claims regarding their being irrevocable licensees, with an emphasis on the circumstances of the matter and the land that constitutes public land.
62. I accept the plaintiffs' arguments in full with respect to the legal issues relating to the defendants' lack of rights in the land, including the judgments referred to by the plaintiffs in the case of Ali Abu Taleb, Nahum and Hyper Halaf, and more. (See: CA (District Civil Case) 15654-03-17 Ali Abu Taleb v.  Municipality of Tel Aviv-Yafo (Nevo, August 27, 2018) CA 6757/13 Miriam Abitsam Nahum v.  State of Israel - Development Authority (published in Nevo, August 19, 2015)).  These rulings indicate, inter alia, that only in very exceptional and special circumstances (for example, evidence indicating that the municipality was willing to reach an agreement with the holders and allow them to continue to stay in the premises, taking into account the many years of possession), will it be possible to recognize an implied license on public land, and even then it will be the apartment authority, which does not establish a right to the land, but rather constitutes a defense claim against claims for trespass or proper use fees.

The right of the bar of authority is not transferable

63. The defendants' arguments are based on the assumption that they acquired their right to make use of the land, both by virtue of the silence and knowledge of the municipality or the ILA, and by virtue of the alleged right of Or's late father, or by virtue of a purchase from previous owners, and since theyhad used and lived with their families on the site for decades. Therefore, it seems, they are of the opinion that the right given to their predecessors (which is denied by the plaintiffs) is a right that can be transferred to another, and even to be passed on to future generations.
64. As I will show below, this assumption is wrong. The right of the licensee (and it is highly doubtful whether it exists in our case) is a personal right, which cannot be inherited or transferred.  The defendantscertainly cannot derive their rights to compensation from the basket of rights that were given (perhaps) to another person who held the land decades before them.  Moreover, an implied license does not confer a proprietary right in the land.
65. 00The case law has dealt extensively with the issue of the transfer of the rights of a licensee, with in most cases determining that the rights of a licensee cannot be inherited and transferred, unless there is an agreement or a condition in the contract that permits it. In CA 3836/93 Amos Bramly v.  David Bramly, N(3) 868 (1996), it was held as follows:

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