Moreover, in contrast to all the judgments to which the respondent referred in his summaries, in the present case the appeals deal with requests to amend an assessment under section 85 of the Real Estate Taxation Law, where the appellant's argument is that she did not understand in real time the true legal significance of the agreements she signed, and that she did not in fact acquire a "right in real estate" within the meaning of the law. Hence, the attempt to deny the appellant the possibility of arguing her arguments in relation to the legal essence deriving from the said agreements is liable to be rejected.
- Moreover, in any case, the respondent's argument above is within the scope of the applicant's assumption. The Respondent is of the opinion, but due to the fact that a "lease contract" was signed in which it was stated that the Appellant was granted a lease right for 98 years with an option for an additional 98 years, that this should suffice and that this is sufficient to determine that the Appellant acquired a "right in the land" of the type of "lease" in the sense of Real Estate Taxation Law. And it is not.
As detailed above, with regard to the relevant legal infrastructure for the purpose of examining the question of the existence or non-existence of a "right in real estate", it is necessary to examine the contractual system as a whole, with all its conditions and restrictions. It is not enough that it is written in the lease contract that the lease period is for "98 years with an option for an additional 98 years", but a broad and substantive examination of the question of whether it is indeed a "lease", according to all the contractual provisions found in the contracts that bind the appellant.
Only afterwards – if it is found that this is a "lease", and this is not the case discussed here – should we examine whether a lease right was granted for a period of 98 years, or whether another right, whatever its length. And as I explained above, if the right in the appellant's possession is not a "lease" right, even if it is stated in the agreement that this right is for a period of 98 years, this does not change the nature of the right and create a lease right out of thin air.
- In the case before us for a decision, my position is that the entire contractual fabric leads to the conclusion that the appellant did not acquire a "real estate right" of the type of "lease" within the framework of the entirety of contractual engagements with the State, while paying attention to the overall consolidation of the rights and obligations that exist in the appellant's possession as a result of the entirety of the agreements in which it entered. There is, therefore, no room to accept the Respondent's position that it seeks to isolate the lease agreement and relate only to it. Certainly when it was clarified in the lease contract that the provisions of the construction contract and the appendix to the special conditions prevail over the provisions of the lease contract.
An orderly reading of the contracts signed by the appellant leads to the conclusion that it appears that a "standard" lease contract was used, in which the ILA makes use of "regular" tenders for the marketing of land, but this is not at all a regular tender or a standard lease transaction. In fact, even the State itself was aware that the standard contract was not suitable for "Buyer's Price" tenders, and therefore explicitly determined that the Special Conditions Appendix and the building contract prevail over the lease contract in the event of a contradiction. In other words, those parts of the overall agreement that the appellant signed, which in practice create the full legal picture, negate the existence of a "right in land" of the type of "lease" in the sense Real Estate Taxation Law, in the case at hand.
- Both parties referred in their summaries to the judgment in the matter P.A. 93/90 Kettle Company in Tax Appeal v. Tel Aviv Tax Assessor (23.9.1993) (hereinafter – The Kettle Judgment), where the question of whether granting permission to build on real estate is a "right in real estate" for the purpose of Real Estate Taxation Law. In this judgment it was held that the construction period during which the appellant there, the kettle company, undertook to erect a building that would be used in its business activities during the lease period.
I am of the opinion that the matters set out in the Kettle judgment are relevant to our case, since in that case as well, the court found it appropriate to determine that only possession of real estate, without making use of it, does not amount to a "lease" right within the meaning of the Real Estate Taxation Law. In order for such a "lease" right to exist, it is required that the lessee be able to derive any economic or other benefit from the property, whereas allowing construction on the land does not allow for the production of economic benefit during the construction period, but rather the enjoyment of it is in the future, after the completion of the construction.