Family file (Nazareth) 59099-02-24 A.Z. V. M.Z. - part 3

A:                    It was, it was.

See the minutes of the hearing of December 5, 2024, page 6, lines 23-39 . 

67. The plaintiff also did not deny that the defendant worked with him, but claimed that he paid him a salary and that the defendant's employment period was about 4 years before his marriage, and he testified as follows:

Q:                   Nice, is it true now, sir, that before he got married he worked with you?

A:                    As a child.  We were family members, I was an agricultural contractor, he would come with me, with my sisters, you say...  And we would work together.  Supporting the whole family.

Q:                   That's fine.  And he worked with you?

A:                    I don't deny it.  Not on a daily basis, but he came and worked.

See the minutes of the hearing of December 5, 2024, page 4, lines 23-27 . 

68. The defendant admitted in his testimony that the person who built the apartment was his father the plaintiff, and he testified in this regard in his testimony:

Q:          I'm not talking about electricity at all, about everything, about housing.

A:          What to pay for? He gave me the house and built it for me.  And I worked, too.  I'll tell you, even if I didn't work with him and he didn't pay me a salary.  I didn't want this whole house.  A house without a plan.  He just built it in shape, that's how he built it.  Just add-ons, in form, without a license.

See the minutes of the hearing of December 5, 2024, page 40, lines 36-39 . 

69. I did not find in the framework of my decision to overly discuss the testimonies of the defendant and his wife, since the defendant's claims, almost all of them, are legal arguments that the court examined and decided as detailed above. The defendant also testified that renovations were made to the house, as did his wife, and in this regard the court is of the opinion that common sense and logic lead it to the conclusion that improvements were apparently made to the apartment after living for 40 years in a house built in the 1960s, as will be detailed later in the judgment.  I also found it necessary to note that the testimony of the defendant's wife did not contribute or strengthen the defendant's claiMs.
70. After hearing the testimonies of the parties and the defendant's wife, I determine that the plaintiff's testimony is acceptable to the court. The plaintiff's testimony with regard to the granting of permission was not concealed at all.  The plaintiff's testimony regarding the construction of the house was also not contradicted at all.  The court was under the impression that the plaintiff's testimony was highly reliable and logical and was consistent with the cumulative impression that the plaintiff, as the owner of the land, granted the defendant permission to use the apartment.
71. With regard to the nature of the terms or the agreement between the plaintiff and the defendant, the court accepts the plaintiff's argument that he gave the defendant the right to use the apartment free of charge, as he did with his other children, a well-known phenomenon and custom in the sector to which the two parties belong. We are dealing with an authority without consideration that was not limited in time.

The claim for usage fees - is the plaintiff entitled to usage fees and electricity bills:

72. There is no dispute that this is in fact, an agreement and authorization that the plaintiff gave to the defendant to make free use of the apartment for residential purposes since his marriage. The right or permission to use that was granted to the defendant was indeed not limited in time, and it was a free permission, i.e., without consideration, and therefore the plaintiff is entitled to terminate the permission to use at any time.
73. The plaintiff himself confirmed that he did not ask the defendant to pay him rent, nor did he ask the other children who lived in the apartments, so that the plaintiff has no right to demand usage fees for the past period and before the claim was filed.
74. The situation is different for the defendant to be obligated to pay usage fees from the date the plaintiff approached the defendant to remove his hand from the apartment. The plaintiff has been petitioning to receive usage fees since October 2022.  There is no dispute that the plaintiff is entitled to demand usage fees from the moment he requested the termination of the permission, subject to the fact that there was an application for usage fees, but usage fees must be paid only from the date on which he requested it and not on the date he requested to remove him from the apartment.
75. In the warning letter that the plaintiff sent to the defendant on May 21, 2023, he informed him that he had transferred the handling of the eviction claim to an attorney, but in this letter he did not demand usage fees. The plaintiff also stated in his letter that he was attaching to the letter the claim, when it was a claim for removal of the hand only and not a claim for payment of usage fees.  The plaintiff's claim to obligate the defendant to pay usage fees was filed only on February 25, 2024, when the plaintiff set the amount of his claim at ILS 50,000.
76. Since the court reaches the conclusion that the defendant should be ordered to be removed from the apartment, and since the plaintiff sought to obligate the defendant to pay usage fees, and even petitioned in his claim to appoint an appraiser to assess the proper usage fees for the apartment, I found that the plaintiff's claim for usage fees should be accepted and that the defendant be obligated to pay usage fees from the date the claim was filed for use fees, i.e., from February 25, 2024 until the date of the judgment.
77. Since no opinion has been submitted to the file to assess the value of the proper use fees for the apartment, a separate decision will be made regarding the appointment of an appraiser who will assess the value of the use fees for the apartment.
78. As to the demand to pay the electricity bills paid by the plaintiff in place of the defendant for the consumption in the apartment, I found that I accept the defendant's argument and charge him only ILS 5,645 according to the calculation made by him. I will note in this regard that the sum requested by the plaintiff was not clear, once he asked for ILS 19,624, once the sum of ILS 10,624 and once he demanded the sum of ILS 11,060.
79. The plaintiff attached confirmations about the electricity bills he paid and claimed that the total amount of consumption for a period of 15 months that was not paid by the defendant amounts to ILS 26,176 and the monthly consumption for all 4 apartments is ILS 1,745. The plaintiff also admits that he received from the defendant the sum of ILS 2,800.  The plaintiff divided the consumption among the four apartments according to the number of people, but there was an error in his calculation.  The correct calculation is to divide the sum of ILS 1,745 by the number of people.  The number of people in the plaintiff's apartment is 3, the plaintiff has his wife and another daughter.  The number of people in the apartment of the son S.  He is 8, S., his wife and 6 other children, the number of people in the defendant's apartment is 6, the defendant and his wife and 4 other children, while it should be noted that two other daughters of the defendant got married and do not live in the apartment.  There is another apartment in which the plaintiff's two sisters live, and there are 19 people in the four apartments.  The monthly amount of consumption, according to the plaintiff's own calculations, is 1,745 and divided into 19 persons, the result is a total of ILS 92 for each vacationer.
80. Since there are 6 people in the defendant's apartment, the total amount of debt for the entire family is ILS 552 each month, this sum multiplied by the 15 months requested by the plaintiff amounts to a total of ILS 8,280, which is the total amount of the debt. From this sum, the sum of ILS 2,800 that the defendant paid to the plaintiff, which the plaintiff does not deny, must be deducted, so that the total electricity debt that the defendant must repay to the plaintiff is ILS 5,480.  It should be noted and emphasized that the plaintiff disconnected the electricity from the defendant's apartment on March 15, 2024, and the plaintiff admitted to this in his interrogation, and therefore it is not possible to demand that the defendant be obligated to pay the electricity bills beyond this date.
81. Therefore, I determine that the defendant must pay the plaintiff the sum of ILS 5,480 for the electricity consumption. The amount will be paid within 45 days, and the amount will not bear interest and linkage differentials as required by law from the date of this judgment until the full payment is actually made.

Is the defendant entitled to any compensation for his investment in the apartment?

82. According to the case law, the liability to compensate the licensee in the event of its cancellation and removal from the land is not self-evident. It must derive from an explicit agreement or imply an implied agreement or arrangement.  However, in the absence of such an explicit or implied undertaking, such a duty cannot be inferred either from the Tenant's Protection Law or from any other law (the words of the late Justice Haim Cohen, Other Municipality Applications 160/62 Ovadia Levy v.  Municipality of Tel Aviv-Jaffa, IsrSC 16 1773, 1780 (1962)).  Where compensation was awarded to the licensee without consideration in the real estate property whose license was revoked, the compensation was awarded only for his investments in the property and its betterment (Civil Appeal 4163/91 Israel Land Administration v.  Barashi (published in Nevo) 28/4/1998, Civil Appeal 32/77 Tavolitsky v.  Synagogue and Beit Midrash HaChassidim IsrSC 31(3) 210 (1977), Civil Appeal 1156/02 Abd al-Salam Kheir v.  Alon Lidai (published in Nevo) 11/5/2003).  In the Khair v.  Lidai ruling , there was a case in which a free license in real estate was revoked after 40 years and no basis for compensation was found (p.  7 of the judgment).
83. The case law also sharpened the determination of a compensation ruling in the event of the cancellation of a license in real estate from both a substantive and procedural aspect. From a substantive point of view, the rulings noted above were based on the determination that compensation for the revocation of a real estate permit will be given only for investments and improvement of the land, and not for reliance on the recipient of the license or his expectation of continued use of the land.  From the substantive aspect, the trial courts were instructed to base the obligation to pay compensation on the basis of solid evidence, professional opinions of appraisers and accurate calculations.
84. I will note that the defendant's investment claim was indeed raised in the statement of defense and also in the affidavit of the main witness submitted on his behalf. As part of his claims, the defendant claimed that he carried out many works, renovated the apartment before the wedding, including demolishing an interior wall, painting the walls, doing plaster work, assembling interior doors and a new main door, installing new aluminum windows, assembling kitchen cabinets, and more.  The defendant also claimed that even after the wedding, he closed a stairwell and made an addition to the 40 square meter apartment, making it an integral part of the apartment.
85. I will note that the defendant's claims regarding the investments and improvements he made to the apartment were not supported by the evidence. The amount of investments in the amount of ILS 250,000 was claimed in vain and without any evidence and/or references.  The defendant did not prove who carried out the work, did not bring any witnesses or any professional who carried out the work, in order to support his version of the work and the improvement that was done in the apartment.
86. From the evidence and from the plaintiff's hearing, the defendant and his wife indicate that the defendant and his wife entered an apartment that was in a habitable condition. At the same time, common sense and logic say that the defendant made renovations, repairs or changes to the apartment, especially after a period of residence of more than 40 years, and it is reasonable to assume that paint work was carried out, perhaps also flooring, replacement of doors and windows, maintenance and repairs, but certainly not in the amount he claiMs. I also found that the defendant's claim for the construction of an addition can be easily checked from the building permit and by means of a professional opinion, which the appraiser who will be appointed to check in the framework of the opinion that will be submitted on his behalf.
87. In the circumstances, and after hearing the parties, I determine that the investments made are investments that took place after the defendant entered his apartment and not before, and for these investments the defendant should be compensated.
88. The main way to prove the alleged investments in this case, and in the absence of any evidence regarding the investment amounts, is by means of an appraiser's opinion that will examine what changes the defendant made to the apartment, after he and his wife married and lived in it. As stated, the defendant attached to the file an appraiser's opinion regarding the investments and improvements, without obtaining the court's approval to do so, and therefore the court ordered that it be removed from the file.
89. In this context, it should be noted that since the court cannot clearly and accurately estimate the value of the investments, nor by way of estimate, and it is not possible to award a compensation amount without obtaining a professional opinion from a qualified expert, there is room to order the appointment of an expert in the field of appraisal who will assess the value of the investments made in the apartment. In the absence of a professional opinion and in the absence of precise details about the investments, the court's hand is tied to determine the exact amount of investments.
90. Therefore, I order the appointment of an appraiser who will assess the value of the investments, improvements and/or renovations, to the extent that they have been and have been done in the apartment since the defendant received the apartment in 1995 until today. As part of the opinion, the appraiser will also assess the value of the proper use fees for the apartment.
91. After receiving the appraiser's opinion, the amount of compensation to be awarded to the defendant for his investment in the apartment will be determined.
92. The appointment of an appraiser will be given by a separate decision.

General Summary:

93. From all of the above, it clearly emerges that the plaintiff, as the owner of the land and the apartment, was the one who built the apartment, which was ready for living before the defendant's marriage. It can also be determined that there was no written agreement between the plaintiff and the defendant regarding the right to use and/or live in the apartment.
94. It has been proven that we are not dealing with a written agreement and there was no written undertaking in our case to transfer the rights in the land or the apartment to the defendant in the future. This is, in fact, the consent and authorization that the plaintiff gave to the defendant to make free use of the apartment for residential purposes since his marriage.  The right or permission to use that was given to the defendant was not limited in time, and it was free of charge, i.e., without consideration, and therefore the plaintiff is entitled to terminate the use permission at any time.  As things stand, there is no doubt that we are dealing with a free use permit that the plaintiff gave to the defendant, and he is entitled to cancel it at any time and petition for the removal of the defendant from the apartment.
95. No statement or summary was proven that the permission to use the apartment was uninhabitable. A free license that is non-revocable belongs to rare cases and recognition of such a free use license cannot be revoked, only in rare cases, and case law determines that the trend is to reduce the manifestations of an irrevocable license and not to expand it (see: Civil Appeal Authority 1156/02 Hir v.  Liddai, IsrSC 57(3) 949, 955-957 (2003).

Conclusion:

96. The claim for eviction relief against the defendant is accepted.
97. The claim for relief of usage fees is accepted and the amount of the appropriate usage fees that the defendant must be obligated to pay will be determined after receiving the appraiser's opinion.
98. The amount of compensation due to the defendant for the investments made in the apartment will also be determined after receiving the appraiser's opinion.
99. An order is hereby issued instructing the defendant to remove his hand from the apartment from the plaintiff, to vacate it and return it to the plaintiff while it is free of any person and object. In order to enable the defendant, his wife and their children to organize and find alternative housing, I determine that the defendant will vacate the apartment within 60 days from today.  The eviction will be carried out without any connection to the claim for the usage fees and the defendant's right to receive compensation, an issue that will be decided after receiving an appraiser's opinion.
100. In the circumstances of the case, and despite the outcome that I have reached, and in order not to escalate the dispute between the parties, and especially in view of the difficult outcome of this judgment, when as a result the defendant and his family will be required to find another place of residence and will suffer considerable damage, I have not found it necessary to issue an order for costs and each party will bear its own expenses.
101. The Secretariat will provide the judgment to the parties' attorney and close the two files in the heading.

Publication with the omission of identifying information is permitted.