(St) 387/23 Third Iris v. Representative of the Condominium at 3 Tzipora Tov Street, Rehovot

State of Israel

Ministry of Justice

Rehovot

Judgment

The matter of the claim before me concerns a motion to charge the defendant, the representative of the condominium, with the cost of sealing work on the roof of the condominium in which the plaintiff carried alone.  I will preface by saying that the lawsuit should be dismissed.

Factual background and the course of the proceeding:

1. We are dealing with the condominium on Tzipora Tov Street, 3 Rehovot, located on land known as Block 3648, Plot 307 (hereinafter: "the Condominium"). The plaintiff was the owner of the apartment known as subplot 154 in the condominium, on the top floor of the condominium, and the defendant is the legal representative of the condominium.  I will note that in accordance with the agreed regulations of the condominium, the house is divided into two wings, with the apartment owners in each wing bearing the costs of maintaining the common property of the wing in which they live.  The matter of the claim before me is in Annex 2 (the Western Wing).  The parties agree that the matter of the claim relates only to this section.  Given the above, and for the avoidance of confusion, I will refer in the judgment to the western wing as the "common home".
2. I will note that the representative office was not represented in the proceeding by an attorney, and the person who represented it was a member of the delegation, Mr. Amir Sela (hereinafter: " Sela").
3. In fact, the facts, for the most part, are indisputable. For many years, a defect in the waterproofing of the roof of the condominium caused dampness in the plaintiff's apartment.  The representative recognized its responsibility for a defect in the waterproofing on the roof of the condominium, and accordingly performed a sealing with sheets by a contractor on its behalf, who also granted a warranty for a period of ten years, which is still in effect, although the scope of the warranty was not fully clarified.  The sealing carried out by the representative office was not good enough, and every year the plaintiff would suffer dampness due to the faulty sealing.  The representative office recognized that dampness was caused and that it was responsible for it, and from time to time it carried out repairs to the sealing, through the same contractor who carried out the sealing in the first place, and that today we are in the period of warranty that he granted.
4. Towards the summer of 2023, the plaintiff decided to try to sell her apartment, and she was not interested in selling the apartment when she was suffering from active moisture damage. Accordingly, the plaintiff contacted professionals, requesting quotes for sealing the roof of the condominium.  Equipped with two price quotes, the plaintiff, through her attorney, contacted the representative office, and demanded that the sealing be carried out by one of the companies offered by her.  The representative office rejected the plaintiff's request, claiming that it was not interested in carrying out a repair by a professional other than the contractor who gave responsibility for the sealing, but the plaintiff was offered one of two alternatives: (1) carrying out the repair herself and at her expense; and (2) carrying out the repair at her own expense, and in return granting an exemption from paying the representative fees for a period of ten years, an exemption that amounts to a total of ILS 60,000.  I will note that during the hearing, Mr. Sela stated that these proposals were made out of a desire to assist the plaintiff, and even though they were intended to harm the warranty period granted to the sealing work, out of recognition of the plaintiff's distress and her desire to sell the apartment as soon as possible.
5. The plaintiff was not interested in the proposals made by the representative office, and independently contracted with Windows 2003 Tax Works (hereinafter: "Windows 2003"), which offered the cheapest of the proposals presented to it. During the month of July 2023, the work was carried out to seal the roof, and in return for the work, the plaintiff paid the 2003 windows a total payment of ILS 58,500.
6. On September 19, 2023, the plaintiff filed the claim before me, in which she claimed that due to the representative office's refusal to carry out the required repair to the roof of the condominium, she must indemnify the plaintiff for the amount she incurred in connection with the waterproofing of the roof of the condominium. Accordingly, the plaintiff sought relief of monetary compensation in the sum of ILS 57,740, which constitutes the payment she bore, less her relative share of the expenses of the common property, in the sum of ILS 760 only.  The plaintiff also sought to obligate the defendant to pay legal expenses, including attorney's fees plus a lawful tax appeal, together with linkage and interest differences.
7. In the statement of defense, the defendant claimed that the plaintiff received an exemption from paying house committee taxes for long periods, in exchange for the plaintiff's responsibility to carry out sealing work on the roof of the condominium. It was also claimed that the plaintiff carried out the work on the common property on her own, without the defendant's approval, and thus in fact caused economic damage to the condominium, since the condominium has a 10-year warranty for the waterproofing of the roof from the contractor who carried out the sealing work.  On January 8, 2024, the representative office submitted a document entitled "Confirmation of Absence of Debts", in which it was claimed that the plaintiff had previously been granted an exemption from paying representative fees in the sum of ILS 60,000, in exchange for the improvement of the building's roof.
8. In the reply dated January 18, 2024, the plaintiff referred to the claim regarding the exemption from paying taxes until it was given to her. The plaintiff claimed that she was never given an exemption in the sum of ILS 60,000, and that the only exemption given to her was in 2017, in a total amount of only ILS 6,000, for performing a specific repair on the roof of the condominium, and not for the sealing, which was carried out by the representative office itself.  In this context, it was noted that the plaintiff actually pays the committee fees as usual, except in 2017 when she was granted an exemption, and if she had indeed received an exemption from paying committee fees in the sum of ILS 60,000, this would have exempted her from payment for a period of ten years.
9. I will preface the latter by saying that Mr. Sela admitted during the evidentiary hearing that the plaintiff was not given any exemption from paying the house committee taxes, except for the specific exemption in 2017, in the sum of ILS 60,000. In other words, the statements of the representative on this matter, which were later also made in Mr. Sela's affidavit, are not true.
10. On September 23, 2024, a pre-trial hearing was held before me in the case, during which I suggested that the parties reach the conclusion of the proceeding by means of a judgment by way of a settlement. My proposal was not accepted by the parties, and accordingly the case was set for evidence.
11. To prove her claim, the plaintiff submitted an affidavit on her behalf, as well as an affidavit of Mr. Yuval Maimon, the owner and manager of Windows 2003 (hereinafter: " Maimon"). The defendant submitted Mr. Sela's affidavit in support of her claims.
12. On March 20, 2025, an evidentiary hearing was held before me in which the witnesses were questioned about their affidavits. At the end of the discussion, I once again suggested to the parties to reach an agreement regarding the extent within which a decision would be made by way of a compromise, but the parties were unable to reach an agreed term.  Accordingly, I instructed the parties to summarize their arguments orally.
13. At the beginning of her summaries, the plaintiff argued that the professional arguments of the representative regarding the need to seal the roof of the condominium or the quality of the sealing performed by the plaintiff should be rejected, since these claims were made with reference to the opinion, without the authors of the opinion appearing to testify. On the merits, it was argued that there is no dispute that the responsibility for sealing the common roof rests with the representative office; There is also no dispute that although the mission has made repairs to the roof of the condominium from time to time, these repairs have not solved the problem; Finally, there is no dispute that the representative office refused the plaintiff's demand to carry out repairs to the roof of the condominium.
14. According to the plaintiff, given the refusal of the representative office to carry out the duty imposed on it by law to deal with the common property, she is entitled to demand from her the cost of carrying out the work done on the common property. In this argument, the plaintiff relies on the decision given in the matter of Civil Appeal Authority 4984/17 Haim v.  Representation of the Condominium 48 Sokolov [Nevo] (December 14, 2017) (hereinafter: the "Life Matter"), in which it was determined that an apartment owner may demand indemnification from the representative of the condominium in connection with work he performed on the common property, subject to the fulfillment of six conditions: (1) the defect that was treated is a defect in the common property, which the representative of the condominium was obliged to repair at its expense; (2) a preliminary application was made to the representative of the condominium, which refused to carry out the repair; (3) a delay in the execution of the repair would have resulted in a significant aggravation of the damage; (4) The necessity of the repair must be proven so that failure to carry out the repair as soon as possible will clearly and severely harm the plaintiff's ability to make use of his apartment; (5) It is required that the defect corrected by the apartment owner be properly corrected; and (6) the cost of the repair must be taken into account in two senses: first, the more significant the expense, the greater the burden on the apartment owner in awarding indemnity in his favor.  and second, an apartment owner will not be entitled to compensation for unreasonable expenses (see: ibid., paragraph 7).
15. It was argued that all the conditions stated in the Rule of Life are fulfilled in our case: with regard to the first and second conditions, the matter is not in dispute; with regard to the third and fourth conditions, it was argued that an early application to the Inspector would have led to a significant delay in the execution of the repairs, and at least a delay of a few months, which would have put us into the winter period, without the repairs being addressed. This would have caused the plaintiff suffering, and may even have prevented her from selling her apartment.  It was also claimed that according to Mr. Maimon's affidavit, the dampness even causes structural damage to the condominium, which gets worse every year.  Because of this, it was important and urgent to carry out the repairs as soon as possible.  It was argued that the desire to sell the apartment is an important factor in terms of urgency; Regarding the fifth condition, it was claimed that the sealing was carried out by a skilled professional, and was done in a good manner; Finally, with regard to the sixth condition, it was claimed that the plaintiff approached two professionals to receive offers, and contracted with the cheaper bidder.  It was also argued in this context that the representative office did not present any other opinion regarding the payment and the nature of the execution of the work, and that even if it is determined that the payment was higher than reasonable, the plaintiff should still be awarded the reasonable amount.
16. The plaintiff referred to judgments that applied the Haim rule and which in her position are also relevant to our case.
17. The representative office made do with the following: "A precedent should not be set in which a tenant decides on his own to renovate a common property without obtaining prior approval from the house committee, and then demand a refund. Especially when the same joint property is under the responsibility of a contractor for a period of 10 years.  As was stated in the previous legal hearing, and today it was repeated dozens of times, there was no event of urgency to carry out the renovation work, except for the plaintiff's desire to sell the apartment."

Discussion and Decision:

18. Section 3(a) of the Regulations in the Appendix to the Land Law, 5729-1969 (hereinafter: "the Land Law") states that:

"An apartment owner is entitled to demand that the representative office make any repair to the house or common property, the failure of which may damage his apartment or its value."

19. What should an apartment owner do, who, despite his demand to do so, refuses to make a repair to the condominium property, the failure of which may damage his apartment? To this question, the Honorable Justice Hendel answered in the Haim case, that "the individual tenant must recognize the status of the condominium representative.  If not, this mechanism will be emptied of content.  Against this background, one should not accept a situation in which a man who is good in his eyes will be corrected.  The way to go, then, is by contacting the representative of the condominium with a demand that they correct the defect.  If the representative office refuses to correct the defect, the tenant can contact the supervisor for a decision on the dispute." (Interest Life, paragraph 4).
20. However, Justice Hendel recognized the exception to the aforementioned rule, and ruled that in exceptional cases, an apartment owner can correct the defect himself, after the representative refuses to correct the defect, and file an indemnity claim. However, these are exceptional cases that must be used "only in a case where walking on the main road will cause great damage", when the plaintiff must prove that the conditions of the exception were met, which are: a defect that the representative was obligated to correct; Contacting the representative office and refusing to correct it; the increasing urgency of the possibility of referral to the supervisor; severe impairment of his ability to make use of the property; the correction of the defect in an appropriate manner; and as stated, there is weight to the cost of the repair" (Ma'ad Chayim, paragraph 7).
21. Although the decision in the matter of Haim was given by a single judge, in the framework of a decision rejecting an application for leave to appeal in a third incarnation, it was quoted extensively, and in fact constitutes the guiding decision regarding indemnity claims filed by apartment owners against a condominium representative in connection with the execution of repairs to the common property (see: Miscellaneous Appeal - Civil (Tel Aviv District) 34810-10-18 Rabin v. House Representation at 35 Remez St., Tel Aviv, Paragraph 17 [Nevo] (April 15, 2019); Miscellaneous Appeal - Civil (Tel Aviv District) 34162-05-19 Tzvani v.  Condominium Representative, 18 Shalom Aleichem St., Holon, paragraph 13 [Nevo] (October 31, 2019); Miscellaneous Appeal - Civil (Tel Aviv District) 60770-06-20 Kirschenbaum v.  Aviv Building Management and Maintenance [Nevo] (A.N.O.M.) Ltd., paragraph 24 (January 17, 2021); Civil Appeal (Hai District) 6298-03-24 House Committee (Condominium Representative) Agnon 7 Nahariya v.  Elishkov [Nevo] (May 9, 2024); The Haim Rule has been mentioned and implemented in dozens of judgments of Land Registry Supervisors, including: (Haifa Land Supervisor) 78/20 Hayoun v.  In Good Hands, Assets and Entrepreneurship M.L.  in a tax appeal [Nevo] (December 2, 2020); (Petah Tikva Land Supervisor) 535/16 Stern v.  Okan [Nevo] (November 6, 2019)).
22. and applied to our case, in order to prove her claim, the plaintiff must prove that she meets the six conditions set forth in the matter of life to receive indemnity for the execution of works by an apartment owner on the common property. As stated, the six conditions are: (1) the defect that was treated is a defect in the common property, which the representative of the condominium was obliged to repair at its expense; (2) a preliminary application was made to the representative of the condominium, which refused to carry out the repair; (3) a delay in the execution of the repair would have resulted in a significant aggravation of the damage; (4) The necessity of carrying out the repair must be proven, so that failure to carry out the repair as soon as possible will clearly and severely impair the plaintiff's ability to make use of his apartment; (5) It is required that the defect corrected by the apartment owner be properly corrected; and (6) the reasonableness of the cost of the repair must be examined.
23. Before I examine the fulfillment of the conditions in our case, I will note that this is an amendment that involves a considerable cost. In these circumstances, the plaintiff must meet a higher standard of proof of the existence of the cumulative conditions (see: Haim, paragraph 7).
24. After reviewing all the material placed before me, I have come to the conclusion that the plaintiff has been able to prove four of the six conditions. Two of the conditions are in fact not controversial: the representative office admits that the defect that was corrected is in the common property and that it is responsible for correcting it, even if it believes that the way to fix it is by exhausting the responsibility and not by contacting other professionals; The representative office also admits that it refused the plaintiff's prior request to carry out the repair.  It therefore follows that there is no dispute as to the fulfillment of the first two conditions.
25. I am of the opinion that the plaintiff was able to prove the fulfillment of the fifth and sixth conditions as well. According to the Representative, the repair carried out by Windows 2003 was done poorly, and its cost is unreasonable, given that the Representation could have carried out the repair free of charge, within the framework of the warranty given to it.  However, with regard to the optimal execution of the repair, the plaintiff testified that since the repair was carried out, the problem of dampness in her apartment has been resolved, while on the other hand, the representative office's claim that the repair was made in a non-optimal manner was made in vain, while making various claims without reference.  Even with regard to the cost of the repair, I am of the opinion that the plaintiff has been able to prove that it is a reasonable cost.  First, the Representative's claim regarding the responsibility it had was concealed during the cross-examination, when Mr. Sela failed to fully present the applicability of the responsibility given to him, and to prove its scope.  Second, the plaintiff approached two companies, and entered into an agreement with the company that was the cheapest of their members, and no real claim was made regarding the reasonable cost.  Certainly no opinion was presented regarding the reasonable cost, or any other proof.  In these circumstances, I hold that the plaintiff was able to prove that the conditions regarding the nature of the amendment and its cost were met (the fifth and sixth conditions).
26. However, I am of the opinion that the plaintiff has not been able to prove the existence of the third and fourth conditions, regarding the urgent need for repair, and regarding the material damage that will be caused to the apartment if the repair is not carried out immediately. In this regard, I will note that in the case of the Honorable Haim, the Honorable Justice Hendel justified the exception - which allows the execution of a repair to the common property by an apartment owner, without the prior consent of the condominium representative - inter alia by means of section 31(a)(2) of the Real Estate Law, which states that a partner is entitled to "take any urgent and unforeseen action in advance necessary for the proper maintenance and management of the land".  I am of the opinion that these requirements should be applied in our case as well, and it should be determined that this definition should be seen as aiding the interpretation of the third and fourth conditions.  In other words, in order to be included in the scope of the exception, the plaintiff must prove that the repair he made was urgent and unforeseen in advance, when the conditions add
27. In this context, I would like to point out the following facts, which are not in dispute. The plaintiff has been dealing with dampness in her apartment for several years, during all of which the plaintiff lived in the apartment herself.  Indeed, there is substance to the plaintiff's claim that if she had filed a claim with the Inspector during the month of July 2023, it is doubtful whether it would have been possible to complete the process and carry out the repairs within a few months, before the impending rainy season.  However, given that the plaintiff has been suffering from dampness for several years, there is a difficulty in arguing that there is a special urgency in carrying out the repair before another winter arrives, which may worsen the situation.  In any event, the amendment cannot be regarded as an "unexpected action", as stated in section 31(a)(2) of the Real Estate Law.
28. Moreover, accepting the plaintiff's argument that making a repair before the rainy season constitutes an urgent need that justifies the existence of the exception, will lead to the exception becoming a rule, since in very many cases the defects in the common property relate to a failure in the sealing that is relevant to the rainy season. Accepting the argument that there is a desire to complete the repair before the rainy season arrives, will lead to the rule that it will be possible to wait close to the rainy season, carry out the repair, and then claim indemnification.  In this regard, it should also be remembered that although the plaintiff chose to carry out the repair in July, when there may not have been enough time to complete the legal proceeding before the rainy season, the plaintiff does not have a satisfactory explanation as to why she did not file the claim long beforehand, at a stage that would have allowed the end of the proceeding, given that she has been aware of the defect for several years.
29. The aforesaid is also relevant to the plaintiff's claim regarding her urgent desire to sell her apartment, when she does not suffer from defects. With all due respect, I do not believe that the desire to sell the apartment constitutes an urgent need in accordance with what is stated in the matter of life.  I am of the opinion that the urgent need in the matter of life is an objective urgent need, in the sense of the damage that will be caused to the apartment if the repair is not carried out immediately, such as a significant active leak, which may, God forbid, cause great financial damage.  I do not believe that the desire of an apartment owner to sell his apartment justifies a deviation from the royal path towards the exception.
30. Finally, it should be determined that the fourth rule is also not met, according to which refraining from immediate treatment of the defect would have resulted in the apartment becoming unusable. In this regard, it should be mentioned that the plaintiff has been living in her apartment for a number of years, during which year after year there is dampness in the apartment, while despite the dampness the plaintiff continues to live in her apartment.  I am of the opinion that this is sufficient to determine that the dampness from which the apartment would have suffered, if the plaintiff had refrained from repairing the defect in the apartment, would not have led to the fact that it was impossible to live in the apartment.  It should be noted that the plaintiff did not clearly claim that the damages prevented the use of the apartment for residence, and at least did not present evidence in this regard.
31. The plaintiff argued in her summaries that in accordance with Mr. Maimon's opinion, refraining from handling the sealing would have aggravated the damage caused to the building's construction. However, even if it is described that there is substance to this claim, it is not argued that the damage requires immediate treatment, and that it is not possible to wait with the treatment until the plaintiff files a proceeding against the representative office has been exhausted.  In these circumstances, this argument does not contribute to the plaintiff's position.
32. Ultimately, the plaintiff was unable to prove the fulfillment of the six conditions set out in the matter of life, and therefore the claim should be dismissed.

Other Topics

33. I would like to note, following comments that arose during the evidentiary hearing, that according to the plaintiff, the dampness in her apartment caused her various damages. It should be clarified that this proceeding does not deal with the plaintiff's alleged damages, which in any case are not within the authority of the Supervisor of Land Registration, and the plaintiff's claims in this matter are reserved for her (see: Additional Hearing 20/73, Shema v.  Sadowsky PD 28 (1) 730 (1974); Civil Appeal (Tel Aviv District) 2295/01 Menachemi Bonei David Towers Ramat Gan in Tax Appeal v.  Representative of the Condominium on Jabotinsky Street, paragraph 4 [Nevo] (June 30, 2002)).
34. With regard to the costs of the proceeding, after considering the matter, I am of the opinion that despite the dismissal of the claim, it should be determined that each of the parties will bear its own expenses. The reason for this is that the representative office chose to present a document, which was prepared for the purposes of this proceeding, in which it was claimed that the plaintiff received an exemption from payment of representative fees in the amount of ILS 60,000.  As noted, the representative of the representative of the mission admitted that this document is not true.  In addition, during the course of the proceeding, the representative office tried to create a representation according to which the plaintiff received an exemption from paying the representative fees for a period of one year, due to taking responsibility for the waterproofing of the roof.  In this regard, too, it was proven that this was an incorrect representation, but that the exemption was given due to the plaintiff's specific and limited repair of the roof of the condominium.  In view of the aforesaid conduct of the representative office, and the fact that the representative office was not represented, except for its representation in the hearings by Mr. Sela, I determine that even though the claim was dismissed, each party will bear its own expenses.

Conclusion:

35. The lawsuit is dismissed; There is no order for costs.

Given today, March 24, 2025, 24 Adar 5785, in the absence of the parties.