12-34-56-78 Chekhov v. State of Israel, P.D. 51 (2)
- Over the years, it was claimed that many real estate transactions were made by the brothers, who sold rights to third parties, including the plaintiff (hereinafter: "Hajj"). There is no dispute that in 2009 and 2011, Haj purchased, out of Munir's registered rights, in two separate transactions, areas totaling 540 square meters in a plot marked according to the Partition Plan M/8, which was attached to the sale agreement, as Plot 13/21. Haj built his house on Lot 13/21, after receiving a building permit. In the building file of the Local Planning and Building Committee, it appears that the permit was granted on the basis of the M/8 subdivision plan that is contained in the permit file, and Hajj relied on it in his application for a permit (see: Exhibit N/1). Defendants 1-10 claimed that there was a reckoning between the brothers related to those transactions, when Munir made sales transactions out of his rights, but in practice those rights that were transferred were Munir's share and the remaining part of another brother. Thus, for example, Munir claims that 415 square meters of the portion sold in the transactions with Haj were from Jerais's share, although 500 square meters of that land registry had a warning note on Munir's ownership. Munir's main argument is that some of the transactions were made by him, for his brothers and with their consent, in order to save on tax payments, and some of the transactions were made for him. In addition, according to Munir, it was agreed between him and his brother that if he sold parts that belonged only to him as part of these transactions, his brothers would return to him rights in the land when the land was divided.
- The defendants detail the transactions that were made over the years, including the transactions according to which Munir sold parts registered in his name, but in practice some of them were sold for his brother, as follows:
- 30/768 parts were sold from Munir to Mr. Samir Shehadeh. It was claimed that 15/768 was sold for Munir himself and 15/768 was sold for defendant No. 4 and the area was attributed to Lot 1/21.
- 500 square meters were sold from Munir to Mr. Matri Haddad and the area was attributed to Lot 2/21.
- 500 square meters were sold from Munir to Mr. Maher Nassar, and it was claimed that 250 square meters were from Jerais's share and 250 square meters were from the share of defendant No. The area was attributed to Lot 3/21.
- Copied from Nevo490 square meters were sold by Munir to Mr. and Mrs. Habib and Arij Kreini (245 square meters each). The area was attributed to Lot No. 4/21.
- 488 square meters were sold from Munir to Mr. Matri Hadad. It was claimed that the sale was out of the share of defendant No. The area was attributed to Lot 5/21.
- 100 square meters that were sold from Jereis to Munir.
- 25 square meters which were sold from Jereis to defendant No. 3 Yosef Khoury.
- 500 square meters that were transferred free of charge from Jarays to his son Anad Khoury.
- 1,000 square meters, which were transferred free of charge from Munir to Jereis and defendants 3-5 - each of them received 250 square meters.
- 4 square meters, which were transferred from the part of Jereis for the benefit of roads that pass through part of it (the total area set aside from the parts of all the brothers for the benefit of roads is larger, here we are talking about Jerais's part only).
- On August 4, 2014, Hajj purchased 609 square meters of the land directly from Jarays, in a lot marked 17/21 (hereinafter: "The Sale Transaction"). It was claimed that a different distribution plan was attached to this agreement than the M/8 distribution plan, without the consent of the other landowners (hereinafter: "Distribution Plan M/10"). At that stage, rights were registered in Jerais's name in the scope of about 300 square meters, but about two weeks after the sale transaction was made, sister Rihab transferred her rights to the land in the scope of about 480 square meters, so that ShasAntitrust registered in the name of 780 square meters. According to the registration document that was submitted, Jereys is currently registered as the owner of 19175/786048 and another 5/128 portions of the land, which, as aforesaid, are in an area of 780 square meters.
The sequence of previous proceedings:
- On October 30, 2014, defendants 2-4 filed a lawsuit in the Haifa District Court against Hajj, Jarays and defendants 5-9 regarding the sale transaction in the framework of the Civil Case 52681-10-14 (Hereinafter: "The Previous Claim" or "The Kendam Procedure"). In the framework of the previous lawsuit, the court was asked to declare that the sale agreement was void; that Jereys did not have any rights in the land prior to the execution of the sale transaction and therefore cannot sell them to third parties; that the partition plan M/8 is binding on the parties and the dissolution of the partnership in the land must be ordered accordingly; and that Lot 17/21 is owned by Munir only.
The District Court accepted the claim in part and granted only the first remedy, according to which the registration of the sale transaction should be canceled. The District Court also ordered the return of the money that Jaris received from the plaintiff, together with linkage and interest differences. As for the additional remedies requested, the court dismissed the claim and ruled that it was unable to decide these questions, while all the relevant parties had not been added to the proceeding. It was further held that the plaintiffs there proved that Haj could not rely on the protections set forth in sections 9 and 10 of the Land Law, 5729-1969 (hereinafter: the "Land Law"), since Jereis purported to sell rights that he did not own at the time of the sale, since the sale transaction was in the matter of Lot 17/21, and relied on the partition plan M/10, which was not agreed upon by all the owners. The District Court further examined whether Jaris had any rights that he could have transferred to Hajj in the sale transaction, and ruled that it had not been proven that he had no remaining rights. The court raised doubt, without making a positive finding, as to whether there were previous contradictory transactions that took precedence over the sale transaction, given that the alleged transactions did not end in the registration. It was determined that Haj was aware of the status of the rights in the plot, in light of his reliance on the partition plan M/8 at the time of the purchase of Lot 13/21 and when he built his house there, and therefore he was not in good faith when he entered into the sale transaction in reliance on the partition plan M/10. The plaintiff's claim of reliance on the rights of Jereys registered in the registry was also rejected.