Civil Case (Tel Aviv) 31735-01-22 Tel Aviv-Jaffa Municipality v. Miriam Danoch - part 4

Thus the judgment continues:

"An eviction claim from public land is generally simple to prove and clarify, and in the normal situation it will be decided within a short period of time compared to a claim for compensation for the cancellation of the authority.  For these considerations, it is effective and appropriate to separate the eviction claim from the compensation claim where the defendant did not file a counterclaim or a separate claim at the appropriate time (in which case there is room to consider whether to consolidate the hearing of the claims with regard to the date of filing the compensation claim).  The separation between the eviction claim and the compensation claim is therefore the rule and should be adhered to."

84. In this regard, I would also like to refer to Cell (Civil Case) 4865-10-13 Tel Aviv-Jaffa Municipality v. Menachem Shamir [Nevo] to the judgment of the Honorable Judge Guy Heiman in paragraphs 8-12, which reviews the various rulings and policy regarding the binding of eviction with compensation, as well as the judgment of the Honorable Judge Carmela Haft in the matter of Cell (Civil Case) 5080-03-17 Israel Land Authority Central District v.    Peled et Vida Ltd.  [Nevo] paragraphs 86-96, which discusses the remedy of land evacuation and the question of binding the compensation in the Argazim neighborhood.
85. These are the decisions of the courts, and after carefully examining and considering the circumstances of the matter and the arguments of the parties, I am satisfied, as stated, that the eviction order from the land should not be linked to the compensation. The defendants are not entitled to continue living in the land, not as licensees, not as lawful holders, not as tenants.  The defendants did not present any document attesting to a proprietary right or any other right to make use of the land, did not refer to any agreement with the landowners or previous claimed rights holders, and did not prove an implied consent or license, all the more so when dealing with public land.
86. As it became clear in the course of the conduct of the proceeding, the main dispute lies in the question of compensation and the binding of the evacuation of the land with monetary compensation to the defendants. Taking into account the precedents that apply in the case of a person who does not own the land by virtue of an arrangement in the law or an agreement, the rule is that the eviction should not be tied to compensation, certainly taking into account the purpose of the land in this case.
87. On the sidelines, I will add that after I visited the property and after many hearings were held and the testimonies of the parties were heard, I got the impression that Mrs. Danoch has an alternative place of residence, so it seems that even in the absence of compensation or alternative housing, the defendant will not be left homeless.  As for the Or family, the situation is different, as will be expanded later.
88. I note that the defendants supported their arguments for compensation in an opinion on behalf of an appraiser on their behalf, who estimated the compensation at approximately ILS 6 million for each of the units. Without going into the depth of the matter with respect to the expert's opinion and its status, I will note that the expert's opinion does not clearly state or explain from where the defendants derive their right to compensation in the amount determined.  Moreover, the expert himself notes that the defendants are not the owners of the land, but they cannot be evicted without compensation for the eviction.  It is not clear from which the expert derives his authority to make such a determination, but it is certainly not a legal determination.
89. It is further clarified that my decision regarding the evacuation of the land does not detract from the right of the defendants to continue the proceedings that they chose to conduct in the District Court in connection with their alleged right to compensation.
90. Since this is the legal and factual picture that has been laid out before me, and in accordance with all the legal precedents as presented above, there is no choice but to rule that the eviction of the defendants from the land should be ordered without binding the eviction on the receipt of compensation.
91. It should be noted that from a practical point of view, the defendants hold in their hands the "keys" to the alternative housing, since they have been offered considerable sums of money several times, beyond the letter of the law, and they are able to receive the said payment, and thus in effect subject the eviction to the receipt of the monetary payment that was offered. Had the defendants seen fit to receive the monetary consideration offered by the Municipality, this would have practically bound the eviction with compensation.  Although not in its clear legal sense, but in a way that will allow them to vacate the land with a considerable amount of money in their hands that can enable them to embark on a new life. 

Rejection of the claim for compensation and return of investments due to the evacuation of the land

92. Further to my decision regarding the evacuation of the land, and with respect to the defendants' claims regarding the incurring of large costs due to proximity to the sea or compensation and return of investments following the evacuation of the property, I will note that I accept the plaintiffs' arguments as detailed in their summaries.
93. Even if there were exceptional circumstances in this case that could justify recognition of an implied license in favor of the defendants, and I do not think that this is the case, an examination of the considerations of justice would have led to the rejection of their entitlement to compensation upon the cancellation of the license. This is improper conduct for which there is no room to compensate in the framework of this lawsuit.  This is partly because the defendants did not pay the plaintiffs for the use over the decades, and despite the fact that the assets were used commercially illegally and a property in which they had no rights was derived.  In addition, the defendants built illegally, expanded the residential area without any permit, and added housing units for rent to third parties.
94. In the judgment CA (District Civil Case) 58925-10-15 Municipality of Tel Aviv-Jaffa v. Zion Levy (Nevo, March 8, 2017), it was noted that the non-payment of usage fees for holding the land over the years, and even after the appellant's statement of opinion, constitutes a significant reason in order to determine that it is unjust to compensate the respondent for his investments in real estate (CA 9212/05 Menachem Mauda v.  Condominium Factories Company in Block 6135 Ltd.  [Nevo] (November 23, 2006); CA (Civil Case) 1766/00 Abergil Moshe v.  Israel Lands Administration, Tel Aviv [Nevo] (June 26, 2005), which was confirmed in Civil Appeal 9057/05 Moshe Abergil v.  Israel Lands Administration [Nevo] (March 2, 2006)).
95. The court further raised in the same judgment that even the fact that the authority (which is denied in our case) is free and tacit as distinct from an explicit authority, and the fact that the land is public land, make it difficult to accept the claim of reliance that lies at the basis of the considerations of justice in granting compensation. It was also noted that the rule is that the owner of an illegally built building will not be entitled to compensation for this building (  Crim.  3903/07 Gian v.  Netanya Local Planning and Building Committee [Nevo] (February 21, 2008); CA 9438/09 Shlomo Guetta v.  State of Israel [Nevo] (April 29, 2010); CA 1948/97 Itzkowitz v.  Israel Lands Administration [Nevo] (February 24, 1999)).
96. More than necessary, I will mention that the defendants did not present any evidence regarding their claimed right to the land, and no receipts or documents were presented that would attest to their bearing the costs of renovations, repairs and construction, and the defendants did not prove the claims regarding maintenance and investment over the decades.
97. In this regard, see CA 1156/02 Abd al-Salam Khir v. Alon Lidai (Nevo 11.05.2003) (emphasis added):

"A licensee who was allowed to live in the property without consideration and the permission was revoked is therefore not entitled to compensation under the law for the revocation of the permission; However, he may be entitled to compensation by virtue of an explicit or implied agreement between the landowner and the licensee.  However, each case must be examined according to its circumstances, taking into account considerations of justice.  Thus it was stated that: "Not every case, in which a license is granted and the owner of the property wishes to cancel it, justice demands the continued existence of the license, and there are cases in which it is possible, for example, to suffice with the payment of compensation, as there are also cases in which justice does not even require the payment of any compensation; The opposite is also true, i.e., there are circumstances in which the payment of compensation following the removal of the license holder is actually what can contradict the sense of justice" (the words of President M.  Shamgar (as he was then called) in CA 496/82 Rosen v.  Slonim, IsrSC 39(2) 337, 342;

98. In that judgment, the issue of compensation was discussed, while explaining that until the revocation of the authority, the applicants had lived in the property for approximately 40 years. When the applicant reached retirement age, it was ruled that he must vacate the property in which he lived with his family and find another place to live.  Countering this difficulty of the applicants is the benefit he had for his family members - such a long period during which they lived in the property without consideration and were able to save money and secure a place of residence for themselves.  Moreover, the applicants rejected the compensation offer offered to them by the respondent and even rejected his offer to build a house for them in the adjacent plot.  The applicants did not show any reason, other than the very long period of their residence in the property, which could tip the scales in their favor, and therefore there is no reason to award them compensation for considerations of justice.  It seems that these words are also relevant to our case.
99. As the case may be, the defendants' arguments regarding their right to receive compensation for eviction from the land are hereby rejected. The arguments of the municipality and the ILA, as presented in the summaries, are acceptable to me.  I am convinced that we should not draw an inference from other cases in which compensation was given and different outlines were applied to the land - with respect to the defendants here.
100. Thus, and contrary to the defendants' position, I adopt the plaintiffs' position that in the framework of the claims before me there is no legal or legal obligation to compensate the defendants. I would like to refer to the words of the Honorable Justice Mazuz in the Hyper Lap case, to which the plaintiffs also referred, and to draw an inference from what is said there to the present case as well:

"There is no place to interpret Israel Land Council Resolution No.  531 as recognizing the existence of a right in the hands of an intruder to compensate for the eviction of the invasion, or as granting such a right.  In this decision, permission was given to the appellant by the Israel Lands Council to pay compensation to the squatter in certain circumstances.  Such a need may arise when there is a pressing public interest in the evacuation of public land from squatters, and in order to realize it, the authority is willing to go beyond its limits and grant compensation to those who are not entitled to it, as a kind of painful compromise that is a product of the necessity of reality, or in other circumstances in which justification for granting compensation has been found, such as for humanitarian reasons.  Decision 531 is therefore intended to give the appellant's management additional tools to deal with a complex reality, but it is not intended to grant or recognize the right of an intruder to compensation, and in any case does not establish a reliance interest for him..."

101. The defendants did not prove that they were entitled to continue to use the land, not by virtue of an implied license, not as protected tenants, not as licensees, not as tenants and certainly not as owners. The defendants did not even present any document attesting to a proprietary or other right to make use of the land, and even more so to build on it and make housing units available for rent.  All the more so when we are dealing with public land.
102. In summary, the defendants' claims for compensation for the eviction or return of investments are hereby rejected. The main reasons for the rejection, as aforesaid, are the absence of any right to the defendants in the land, illegal construction on public land, non-payment of usage fees throughout the period of the possession, and even the receipt of economic profit from the illegal use (in the form of making the units available for rent to third parties). 
103. Towards the end, I would like to add that this is a special case that may be interpreted as the lack of governance in an entire complex located on the beach of Israel's largest city, undisturbed. The role of the court is to deter the recurrence of similar cases and to prevent, as much as possible, the continuation of the improper phenomenon of unlawful possession, in the absence of rights, and the execution of illegal construction on public lands.

A brief reference to additional claims raised by the defendants

104. I have reviewed the court rulings presented on behalf of the defendants in their summaries. Without going into the depth of what is happening in relation to each of them, I have found it appropriate to note that the defendants' claims regarding inequality in the granting of grants or discriminatory conduct between different defendants are claims on the administrative level and not on the property level, and this is not the place or the court to attack the actions or decisions of the administrative authorities.
105. I have found it appropriate to reject the claim for compensation by virtue of section 194 of the Planning and Building Law. In their summaries in this context, the defendants referred to the Planning and Building Law itself, as well as to the judgments in the case of Caesar v.  Tel Aviv Local Planning and Building Committee (LCA 3092/01), Sarhan v.  the Custodian General and the Official Receiver [Nevo] (HCJ 7446/17), as well as to Sharafi v.  Israel Lands Administration (CA 297/66).
106. In order not to find the paper missing, see below section 194 of the Planning and Building Law, 5725-1965, on which the defendants base their claim for compensation:

Temporary housing

194. In expropriation proceedings by virtue of this chapter, a dwelling that is intended in the plan for demolition shall not be evacuated until reasonable temporary housing has been made available to a person who lived in the house by virtue of a legal right or a right that was established at the time of publication of the notice of intention to purchase the land, or, if the tenant so wishes, after compensation has been paid to him or his credit in order to obtain reasonable temporary housing.
195. It seems, then, that in order for the defendants to be able to fall within the scope of the section, they must prove that they live in the land by virtue of a right in law or a right of honesty. The defendants did not provide sufficient evidence and did not prove this component.
196. I would like to cite the words of the Honorable Supreme Court in the judgment in CA 7977/15 Gamal Hadia v. Jerusalem Local Planning and Building Committee (Nevo, July 13, 2017), which mentions the judgment in the Caesar case to which the defendants referred and states as follows:

"Indeed, in the Caesar case, it was ruled that when we are dealing with a residential apartment, then, in addition to the four aforementioned conditions, an additional condition set forth in section 194 of the Planning and Zoning Law must be met.  However, the provision of section 194 does not benefit the appellant in the case at hand, since the right to "temporary housing" will meet according to this provision only if the cumulative conditions set forth in the section are met, i.e., that the person claiming the right lives in the house slated for demolition on the expropriated land and that he lives in the house by virtue of a legal right or a right that was established at the time of publication of the notice.  The appellant does not hold the land by virtue of a legal right or by virtue of a right of honesty, but has invaded it unlawfully."