A: That's right.
Q: Is this typical of regular ILA contracts? When they say to the entrepreneur, you actually get, you [sign] now for 98 years, but... Until the new zoning plan, here you can no longer actually promote it, you can't enjoy it.
A: Maybe there are exceptional cases where we don't allow a new plan to be promoted But in general, no, here we wanted housing units as quickly as possible, we didn't want developers to go through a process of changing the zoning plan, and of course the time period would be longer than expected.
Q: ...
A: So we wanted the units as quickly as possible, so we asked him not to, Our parents, we didn't ask that he not advance the plans But he... I can tell you, of course, that there are the local committees or there are other parties that are promoting plans."
It therefore follows that the main argument in Mr. Yaakov's affidavit was completely refuted, and in fact his testimony supports the appellant's position, which claims that "buyer's price" tenders are completely different from regular tenders published by the ILA for the purchase of rights in the land.
- I will further note that I am unable to accept additional arguments raised in Mr. Yaakov's affidavit, including the claim that even in regular ILA tenders there are sanctions against the developer, such as the sanctions that exist in the "Buyer's Price" tenders.
There is no doubt that in regular ILA tenders it has the option of taking sanctions against the developer – whether monetary sanctions (compensation) or a sanction of cancellation of the winning of the tender – if he breached his obligations under the tender, but it is highly doubtful in my opinion whether in the regular tenders there are the specific sanctions, in the specific compensation amounts, according to a defined and specific table – as they exist in the "Buyer's Price" tenders.
It is sufficient for us to examine Exhibit A/6, the wording of a tender by the ILA in "Ramot Yoram" in Netivot, which was presented to Mr. Yaakov during his cross-examination by the appellant's counsel, in order to see the difference between a "regular" tender for the purchase of lease rights and a "buyer's price" tender, including with regard to sanctions.
- Even the argument found in Mr. Yaakov's affidavit regarding the gradation between the contractual sanctions, the procedure for their application, the frequency with which they were applied, etc., is not relevant to our matter and is irrelevant.
The question of whether sanctions were applied and implemented is not of the essence. The emphasis in our case lies in the fact that the ILA as well as the Ministry of Construction and Housing (in relation to the construction contract) were granted the powers under the contractual system to take unique and very specific sanctions, which do not exist in regular contracts concluded after winning a regular tender for the purchase of rights from the ILA.
- Therefore, and in light of all of the above, I would suggest to my colleagues to determine that the appellant's status in the land that is the subject of the appeals is not that of a "lessee and that she did not purchase or receive from the State a "lease right" in the sense of the "Buyer's Price" tenders Real Estate Taxation Law, not in terms of substance and not according to software.
Therefore, and in view of the fact that the appellant did not receive such a right, the provision does not apply to her either. Section 9(a) to the Real Estate Taxation Law and the appellant is not obligated to pay purchase tax according to the law.
- Did the appellant receive the right to hold the land for a period exceeding 25 years?
- Without derogating from my above determination, that the appellant is not a "leaser" of the land, for the sake of caution, I will also discuss the appellant's alternative argument, according to which at no stage did she receive from the state a legal right to hold the land that is the subject of the "Buyer's Price" tenders for a period exceeding 25 years. In other words, the discussion will be based on the assumption that even if it were determined that from a material point of view the appellant acquired a "lease right", and not her, it still cannot be determined that it is a "lease" for a period exceeding 25 years, and therefore it is not a "lease" in the sense Real Estate Taxation Law For this reason as well.
294 . According to the definition of a "right in real estate" In Section 1 The law includes a "lease" within the definition of this right, and on the condition, inter alia, that it is for a period exceeding 25 years. Section 1 The Real Estate Taxation Law even defines the term "lease for a period" and states that it is "The maximum period that the lease can reach according to any right that the lessee or his relative has by virtue of an agreement or by virtue of a right of choice given to the lessee or his relative in the agreement."
- The case law and the legal literature have addressed the manner in which the period for which a lease right was granted should be examined, so that it will be clear from the relevant contractual system that a certain, enforceable and clear legal right to hold the land for a period of more than 25 years has been granted. On this matter, see Namdar's book on page 184, which relates to the "legal nature of the right":
"This is the case with regard to the lease right, which must have binding legal validity and can be enforced in the courts. The court ruled that a right that is a "forecast" regarding the future conduct of the parties does not amount to a right in real estate according to Real Estate Taxation Law. In this matter, a forecast regarding the conduct of the parties should not be satisfied, but a legal obligation must be fulfilled in order for the right to be considered a right in the land. ... However, according to the court's ruling, the lessee right must be an enforceable legal right... "