Civil Case (Legal Investigation) 30720-09-20 Liran Shapira v. Lital Dechner

Judgment

The dispute revolved around an apartment that has severe moisture defects but is still the responsibility of the contractor who built it; The deficiencies raise questions on two levels: on the first level, between the buyers of the "second-hand" apartment and the sellers of the apartment, there is the buyers' claim that the sellers did not disclose to them the condition of the apartment in its entirety; On the second level, between the buyers and the contractor who built the apartment, the buyers argue that the contractor lost the right to repair the defects.  The amount of the claim was set at NIS 461,000.

Background Data: The Apartment and the Parties

1. Shikun & Binui Real Estate Ltd., Defendant 3 (hereinafter The Developer), initiated the construction of a residential project of several buildings in Hadera; The building in which the apartment is located is included in the project. The construction was carried out through a contractor on behalf of the developer, Danya Cebus Ltd., defendant 4 (hereinafter Danya).
2. Defendants 1-2, spouses, purchased an apartment from the developer in the project - A four-room garden apartment on the ground floor at 10/3 Snir Street, Hadera, in a seven-story condominium (hereinafter The apartment). The adjacent apartment has a courtyard of about 175 square meters (hereinafter The Courtyard).  The contract between defendants 1-2 (hereinafter together The Defendants) and the developer signed on May 10, 2015; They received possession of the apartment on December 1, 2016 [paragraph 3 of defendant 1's affidavit, P/1].
3. The defendants sold the apartment to the plaintiffs, spouses, according to a sales contract dated September 24, 2019. The plaintiffs moved into the apartment in December 2019.  According to the plaintiffs, Shortly after they entered the apartment, they were exposed to the existence of dampness shows that increased during the winter [paragraphs 4 and 6 of the affidavit of plaintiff 1, A/1].  They contacted Danya, who was registered as the buyer of the apartment on March 3, 2020, and asked for information about the treatments that had been performed on it up to that date; Danya rejected their demand.
4. At the same time, negotiations were conducted between the plaintiffs and the defendants, with the plaintiffs claiming that the defendants did not disclose to them the information regarding the dampness defects in the apartment, either during the negotiations that preceded the signing of the sale contract or in its body. The defendants denied the plaintiffs' claims and claimed that they had provided information about the dampness defects that existed in the apartment, stating that they had been repaired by Danya and no longer existed.
5. On March 6, 2020, the apartment was inspected by an expert on behalf of the plaintiffs, Engineer Pini Adar (hereinafter Plaintiffs' Expert). In his opinion given on April 1, 2020, he found that there were damp defects in the apartment that must be repaired at an estimated cost of NIS 150,000, including engineering supervision and VAT; In his opinion, there are also other defects in the apartment that are not related to dampness, which must be repaired at a cost of about NIS 70,000, including VAT.
6. The lawsuit was filed on September 14, 2020 against the defendants, the developer and Danya. Prior to its submission, the plaintiffs sent the defendants a warning letter in which they attributed to the defendants a fundamental breach of the sale contract and demanded that they correct it.  The defendants rejected the demand [paragraph 10 and Appendix D of the statement of claim].  Prior to filing the claim, the plaintiffs did not give the developer and Dana notice of the appearance of signs of dampness in the apartment, did not present them with the expert opinion given on their behalf, and did not give them an opportunity to correct the defects enumerated in the opinion.
7. Two contracts relate to the dispute: on the one hand, the contract between the developer and the defendants, according to which the defendants bought the apartment [Appendix 1 B]P/4; Below The Purchase Contract]; On the other hand, the contract according to which the defendants sold the apartment to the plaintiffs [Appendix A inA/1; Below The Contract of Sale]. There is no dispute that the purchase of the apartment by the defendants applies The Sale Law (Apartments), along with the developer's obligations that were anchored in the purchase contract regarding inspection and liability for repairing defects.  There is also no dispute that the rights of the defendants vis-à-vis the developer under the purchase contract were assigned to the plaintiffs in the sale contract, in addition to their reason under the law.
8. The entrepreneur and Danya defended themselves together; There is no front of disagreement between them (Below They will be called together The Contractor). The developer pointed to Danya as the person responsible for repairing defects in the apartment, during the period when the first buyers held it, The defendants, and thus during the period in which the purchasers hold it 'second hand' – are the plaintiffs.  At the same time, both the plaintiffs and the contractor raised various arguments regarding the contractor's right to repair.

The Course of the Investigation

9. At the heart of the lawsuit was the plaintiffs' claim that the defendants had fundamentally breached the sale contract, by deliberately concealing from the plaintiffs that the apartment was suffering from severe dampness problems - So much so that it is unfit for habitation. For the fundamental breach, the agreed contractual compensation in the amount of NIS 176,000 was claimed.  According to the plaintiffs, the contractor was also a party to the non-disclosure in which the defendants committed a sin regarding the condition of the apartment in its entirety.
10. Alongside the agreed compensation, the sum that the plaintiffs' expert stated as necessary to repair the defects in the apartment, NIS 220,000, the cost of evacuating the apartment for thirty days for the purpose of carrying out repair work (including transportation and storage) in the amount of NIS 25,000, and NIS 40,000 for non-pecuniary damage, cancellation of time, harassment and mental anguish, were claimed. The claim against the defendants was limited to the agreed compensation.
11. The defendants defended themselves against the lawsuit and sought to dismiss it, claiming that they had made full disclosure of the plaintiffs at the stage of the negotiations that preceded the signing of the contract and in the sale contract itself; As a result, they did not breach the contract and they are not liable for the compensation agreed upon in it for a fundamental breach. If the claim is accepted, then the contractor is obligated to indemnify the defendants for any amount they are obligated to pay to the plaintiffs; As a result, a notice was filed against the contractor to a third party.
12. The defense contractor, as a defendant and a third party, requested that all the claims against him be dismissed. It was argued that the plaintiffs are not entitled to repair the defects in kind or value due to their behavior, which is expressed in the absence of contacting the contractor with a warning that there are signs of dampness in the apartment – while giving the contractor an opportunity to inspect and repair them.  According to the contractor's approach, if it is nevertheless determined that the plaintiffs are entitled to the repair of the defects, then he should be allowed to carry out the repair in kind and there is no reason to obligate him to pay the costs involved, as demanded by the plaintiffs.
13. The contractor relied on the opinion of an expert on his behalf, Engineer Dov (Dubi) David (hereinafter). The contractor's expert); He visited the apartment on January 28, 2021. In his opinion given on January 29, 2021, he determined that the cost of the work required to deal with the dampness defects is NIS 18,000, while other defects in the apartment that are not related to dampness can be repaired in the sum of NIS 1,900 (together with VAT).  The contractor expressed his willingness to carry out the repair work on the apartment in accordance with the opinion of the expert on his behalf.
14. The defendants did not submit an opinion regarding the defects.
15. As an expert on behalf of a non-decisive court, Engineer Micha Zach (hereinafter Zach or Court Expert). Zach visited the apartment on April 7, 2022.  In his opinion, dated August 23, 2022 [M/1], determined that there were planning and execution failures in the apartment that caused a dampness problem – a problem whose manifestations were clearly evident in the apartment when it was examined.  The court's expert estimated the value of the work required to solve the dampness problem at NIS 130,330, together with a cost of 10% for engineering supervision and the addition of VAT.  He estimated the value of the general repairs unrelated to the dampness problem at NIS 6,000 and VAT.  When the work is carried out by an occasional contractor, these prices are expected to increase by about 30%.
16. The court's expert answered clarification questions addressed to him by the contractor [M/2]. He was invited to be questioned about his opinion, at the request of the contractor.  The plaintiffs' experts and the contractor did not testify; It was determined that the parties will be able to relate to the opinions given by them in the summaries [decision of February 28, 2023].
17. Factual witnesses were also heard who gave their main testimony in an affidavit. In support of the prosecution, the plaintiff testified [A/1].  The defendants relied on the testimonies of defendant 2 [P/1] and of Adv. Zini, their attorney in drafting the sale contract [P/2].  The contractor gave the following witnesses: Uri Shogal - Area Manager in Danya [P/3], Dor Hoffman - Manager in the contractor's customer service system [P/4] and Alex Kor - the person who carried out the drainage planning in the project in general and in the apartment in particular [P/5].  The testimonies were recorded on May 5 and 9, 2024.  The summaries were submitted in writing.
18. The claim must be accepted in part in relation to its amount, both in relation to the defendants and in relation to their contractor. The defendants are liable to pay the compensation agreed upon in the sale contract due to a fundamental breach, after they did not fulfill the duty of disclosure that applies to them regarding the dampness defects from which the apartment suffered at the time of the conclusion of the contract.  Part of the agreed compensation will be rolled over to the contractor, within the framework of the notice to a third party.  The contractor will be obligated to repair the apartment according to the opinion of a court expert, subject to his supervision, while bearing the costs involved.  The matter will be detailed and explained below.

Moisture problems: the contractor's repairs to the apartment

19. The defendants received possession of the apartment, at the end of its construction, on December 1, 2016. Until September 24, 2019, when they entered into the sale contract with the plaintiffs, the defendants repeatedly complained to the contractor about dampness in the apartment.  The contractor sent representatives, checked, performed various actions, got the defendants to sign a documentation – and so on.
20. The plaintiffs entered the apartment after buying it at the beginning of the winter season, in December 2019. Shortly afterwards, they were exposed to dampness in various places in the apartment, mainly swells of paint and plaster in the walls above the panels.  They contacted the contractor, identified themselves as the buyers of the apartment from the defendants – they were recorded in his records and asked to receive the documentation that revolved around the history of the apartment during the period in which it was in the defendants' possession.  The contractor rejected their request and refused to provide them with the documentation [paragraphs 19-20 inP/4].
21. Shortly thereafter, the plaintiffs inspected the apartment through their expert; He confirmed their concern that there were signs of dampness in the apartment and determined the cause. The plaintiffs rewarded the contractor for his non-cooperation, which was expressed in his refusal to provide them with the history of the apartment's treatments, by not providing him with the expert opinion on their behalf.  The contractor was exposed to it only when the claim was filed in September 2020, about six months after the plaintiffs' expert visited the apartment [see the plaintiff's testimony at pp. 40, paras. 8-22].
22. In order to defend against the lawsuit and the notice to a third party, the contractor presented the documentation regarding the treatments he performed on the apartment from the moment it was delivered to the first purchasers – the defendants, until the handing over of possession of it to the plaintiffs – who are the 'second-hand' purchasers. Now he did not claim that the documentation is not disclosed due to confidentiality, right to privacy, or any other reason on which it was previously relied upon, prior to the filing of the lawsuit.  The documentation was attached to the affidavit of the contractor's witness Hoffman [hereinafter The documentation regarding the repairs; Appendix 3 inP/4, pp. 31-116 in the appendices to the affidavit].
23. The documentation regarding the repairs shows that in order to deal with the defendants' complaints about dampness in the apartment, the developer and Danya employed a repair contractor called Duke; Duke issued invoices to the contractor for the work it carried out on the apartment from time to time, in response to the defendants' complaints.
24. Due to their importance to the decision, the defendants' complaints to the contractor regarding dampness in the apartment and the contractor's actions thereof, as expressed in the aforesaid documentation, will be presented here in chronological order.

• On November 9, 2017, Duke issued an invoice to the contractor in the amount of NIS 2,850 for repairs to the rifle and sealants as part of the inspection year in the parents' bathroom, the general bathroom, the master bedroom and an additional bedroom [pp. 109-110 in Appendices N/4]. The approval of the contractor's representatives dated November 19, 2017 for the sealing of the bathrooms was presented [ibid., pp. 115-116].
• On December 13, 2017, Duke issued an invoice to the contractor in the amount of NIS 3,300 [p. 67]. Work was done in the master bathroom in respect of the defendants' complaint dated November 7, 2017 about dampness above the panels between the master bathroom and the bedroom; An order was given to open one tile at the entrance to the master shower for the purpose of checking the separation belt, sealing and checking the dampness of the infrastructure, as well as for performing an action to inspect the pipe in the main line [p. 70].  An undated and unsigned documentation was displayed on the contractor's logo paper: "Opening the flooring, parents' shower, pumping water, sealing and closing the flooring" [p. 76].
• On March 6, 2018, Duke issued an invoice to the contractor in the amount of NIS 2,100 [p. 42]. The accompanying documentation revolved around work done on February 28, 2018, following the defendants' complaint of February 15, 2018; The work listed is cosmetic repairs after the drying of moisture in the living room, kitchen, and entrance to the apartment [pp. 43-45].  On March 5, 2018, cosmetic repairs were also made due to dampness [pp. 46-49].  It was emphasized: "After severe dampness.  Many cosmetic repairs, plaster, putty paint in four different locations in the apartment" [p. 50; Language distortions in the original].
• On June 1, 2018, Duke issued an invoice to the contractor in the amount of NIS 4,800 [p. 35]. Accompanying documentation indicated that actions were required due to the defendants' complaint of March 18, 2018, which revolved around the fact that the swelling in the wall had returned.  An excavation was carried out in the garden in the wall parallel to the kitchen, sealing tar and returning the sand and tuff after exposure, cosmetic repairs to the apartment after dampness, renewal of sika in a laundry hiding; It was documented that 'at Arkady's request, 10 sacks of sesame were brought to the apartment.'  Documentation dated May 27, 2018 referred to "repairs to moisture damage - paint; putty and restoring the situation to its previous state: living room + kitchen along the walls".  In the summary, it was recorded in handwriting that the repair of moisture damage had been done, with reference to penetration along the length of the garden, including smoothing and sealing the wall, providing tuff and closing an excavation.  It was noted that an excavation was carried out along the garden parallel to the living room and kitchen, detailing the included works; In addition, the laundry hiding place was resealed [pp. 37-41].
• On June 2, 2019, Duke issued an invoice to the contractor in the amount of NIS 1,800 [p. 58]. Attached was a documentation regarding a repair in the living room: "On the order of an inspector (email from Ronmer) removal of plaster in all the damp areas" and a repair in a laundry hiding: "On the order of an inspector (email from Ronmer) cleaning and sealing a laundry hiding" [pp. 59-60].  It was noted that on May 23, 2019, a laundry hiding place was cleaned and sealed [p. 61].  The treatment was completed on June 2, 2019 [pp. 65-66].
• On June 2, 2019, Duke issued the contractor an additional invoice in the amount of NIS 2,500 [p. 99]. It stemmed from the defendants' complaint dated May 28, 2019, about dampness appearances.  As a result of this, the following actions were carried out: "On the instructions of the project supervisor (email from Ronmer), excavation and sealing of the garden" and "excavation along the length of the apartment Exposing a wall of concrete slipping Sealing with [illegible] supply of [illegible] Styrofoam protection [...]" [pp. 100-106].
• On August 1, 2019, Duke issued an invoice to the contractor in the amount of NIS 1,900 [p. 84]. The treatment stemmed from the defendants' complaint dated April 16, 2019: "Moisture recurs along the panels at the entrance to the apartment.  The apartment must be visited with the accompaniment of a supervisor."  At the same time, the defendants also complained about recurring dampness along the panels near the kitchen, and it was also noted that the apartment should be visited with an inspector.  On July 14, 2019, it was written in handwriting on the printed documentation that an excavation and sealing of the wall parallel to the kitchen had to be carried out, a polygage should be brought in and a sealing was carried out in the laundry hiding.  On August 1, 2019, it was documented that the laundry hiding place was sealed and that moisture damage was repaired in it, in the living room and in the kitchen [pp. 85-86, 90-91].
• On September 1, 2019, Duke issued an invoice to the contractor in the amount of NIS 2,800 [p. 77]. It was documented that the defendants contacted the contractor on August 26, 2019 with a repeat complaint: "Tenant complains that there is dampness above the panels between the parents' bedroom and the bathroom" [p. 78].  The summary of the work was noted as follows: "After a tour with Alexey, opening the flooring to the receptor, performing sealing, removing the panels, removing the plaster, performing [...] replaster and included the return of panels and paint" [p. 87].
• On January 1, 2020, Duke issued an invoice to the contractor in the amount of NIS 1,800 [p. 92]. At its core, the defendants' complaint of October 23, 2019 was based on the return of dampness over panels in the parents' bedroom.  In the contractor's reference, it was written: "On the orders of the inspector, please carry out a cosmetic repair" [p. 93].  On December 29, 2019, the complaint was dealt with a reference to sealing, plastering, and arranging panels and a rifle [pp. 97-98].  On January 27, 2020, Duke issued an invoice to the contractor in the amount of NIS 1,800 [p. 51]; It also revolved around the defendants' complaint of October 23, 2019 and the work that the contractor carried out in order to deal with it [pp. 52, 56-57].

25. The documentation regarding the repairs is signed by various officials on behalf of the contractor: Arkadi Shraga or Alexey Malkin or Roy Moshe - All in the role of Customer Service Supervisor, Nissan Hagbi Populated Projects Operations Manager and Contractor's Representative Shlomit Taron. They were not among the contractor's witnesses, although according to the documentation they had personal knowledge of what was happening in the apartment – the defendants' complaints about dampness on the one hand and the contractor's efforts to find a solution for them on the other – between delivering it to the defendants and purchasing it by the plaintiffs.  A certified representative of Duke, who was hired to carry out the actual repair work for the contractor, was also not called to testify.  Instead, those who did not set foot in the apartment from the moment it was occupied by the defendants testified on behalf of the contractor.  I will address this later.
26. Documentation regarding the amendments is of great importance. Its main points will be presented in a table that highlights the timeline:

27. What can we learn from the documentation regarding the amendments? It shows that the apartment suffered from severe moisture defects. The defendants took possession of it at the beginning of the winter.  Even before a year had passed since they had lived there, the first signs of dampness appeared.
28. At the end of the 2017-2018 winter season, dampness was recorded in four places: between the master bedroom and the en-suite bathroom (which led to the dismantling of the flooring in the shower and pumping water underneath), in the kitchen, in the living room, and at the entrance to the apartment. The contractor described it as severe dampness in four different locations.  Towards the summer, excavation and sealing operations were carried out in the wall between the yard and the kitchen and the living room, and sealing the laundry hiding, in a way that indicated that the yard was suspected of being the cause of the problem and a source of water entering the apartment.
29. The amendment did not help; The 2018-2019 winter season arrived and once again the defendants complained of signs of dampness above the panels, at the entrance and near the kitchen. With the arrival of the dry season, the contractor once again carried out the actions that Yahavo had thrown at the previous summer: digging and sealing the wall between the yard and the kitchen and sealing the laundry hiding.  At the end of that summer, the apartment was sold to the plaintiffs; Another winter of showers did not pass in which the contractor's repairs were put to the test – in a way that would allow him to assume that the source of the water penetration into the apartment had been located and removed, and in a way that would allow the defendants to declare that the dampness problems in the apartment had been addressed, were not intended and were a thing of the past.

Opinion of the Parties' Experts

30. The plaintiffs' expert, Engineer Pini Adar, visited the apartment on March 6, 2020. It was noted that the test was conducted visually, with the assistance of measuring instruments such as an infrared camera and a humidity meter (protimator) [p. 4 at section 9].  The opinion has two parts: a reference to moisture defects on the one hand and general defects on the other.
31. The plaintiffs' expert emphasized: "Moisture and capillary rise of water are evident in many parts of the walls of the apartment, to the point of peeling and crumbling plaster on the floor, including the disintegration of the gun in many areas of the apartment's flooring, all due to the severe phenomenon of lack of sealing and the penetration of moisture into the apartment" [p. 22]. Capillary moisture was documented above the panels in the girl's room, parents' room, corridor, dining area and living room.  A missing and/or cracked rifle and wet foundation were documented in the girl's room, parents' room, parents' shower, hallway, public bathroom, dining area, and living room.  In relation to the courtyard, a failure was noted in the sealing of the exterior beams.
32. The plaintiffs' expert opinion referred to general defects while stating that their repair costs are detailed [p. 6]; In practice, there is no specific reference to the cost of repairing each defect separately [pp. 6-21]. The plaintiffs' expert estimated the necessary repair work on the apartment at approximately NIS 220,000, including engineering supervision and VAT; Of this, a sum of NIS 150,000 was attributed to the dampness defects [p. 25].
33. The contractor's expert, Engineer Dov David, visited the apartment on January 28, 2021. In his opinion, it was documented that he was assisted by measuring instruments, including an electronic device for detecting moisture in the walls and floor [pp. 3-4].  Highlighted: "Since the main issue of the plaintiffs' claims is the dampness, I will address this in detail below, including instructions for carrying out the required repairs and their financial cost." [Introduction at p. 6].
34. The contractor's expert documented the following findings: low moisture values were measured in an external wall in the girl's room bordering the garden; In the wall between the room and the living room, higher values were measured [pp. 6-7]. In the master bedroom, low moisture values were measured on an external wall bordering the garden; In the common wall between it and the master bathroom, higher moisture values were measured [p. 8].  High humidity was measured in the wall between the parents' bathroom and the corridor, as was the wall of the corridor bordering the general bathroom [ p9].  High humidity was measured in the wall between the bathroom and the dining area, and dampness was detected at the level of the flooring in the bathroom [ p. 10].  High moisture content was measured near the windows of the display case in the living room, as was the northern wall of the window bordering the courtyard [p. 11].  High humidity was measured in the wall of the kitchen that borders the courtyard [p. 12].
35. The contractor's expert attributed the findings to the lack of sealing in the flooring in the master bathroom, in the general bathroom and between the living room balcony and the living room, as well as to the lack of sealing of the foundation walls between the northern wall of the living room and the kitchen wall and the courtyard. He estimated the necessary work at NIS 18,000 [p. 13].  The contractor's expert referred to the plaintiffs' expert's determinations regarding the general defects and estimated the cost of repairing them at NIS 1,900 [pp. 13-14].  VAT must be added to these amounts.
36. The opinion of the contractor's expert is clearly lacking; He, unlike the plaintiffs' expert, had access or at least should have had access to the documentation regarding the amendments. To be precise: the contractor refused to provide this documentation to the plaintiffs.  As a result, they were unable to present him to an expert on their behalf when the latter inspected the apartment and conducted his opinion.  It would have been expected that the contractor would present the documentation to his expert, if his opinion was intended to locate the cause of the recurring dampness problems in the apartment while determining the way in which they should be treated so that they do not recur again.  If the contractor's expert had examined the documentation regarding the repairs, he would have discovered that the contractor had marked the yard as a suspicious factor in causing the dampness inside the apartment, and as a result, he carried out excavation and sealing work on it and in the laundry hiding place twice: at the end of winter in 2018 and then at the end of winter in 2019.
37. The contractor's expert found dampness in many walls in the apartment. He was not required at all to ensure that the sealing he recommended – on the wall between the living room and kitchen and the yard – had already been carried out by the contractor twice; If it has been done twice and the apartment is still wet, it is a sign that the proposed sealing is not enough to solve the problem.  Why would an action that was carried out twice, without achieving the proper result, succeed the third time? The contractor's expert has the solutions.  There is no attempt in his opinion to get to the root of the problem and to locate the cause of rainwater reaching the wall between the yard and the apartment repeatedly, winter after winter, and penetrating into it.
38. As will be clarified in the course of the hearing of the court's expert's opinion, a good, serious drainage plan is intended to keep the water away from there and prevent its penetration into the apartment – but such a plan was not prepared by the developer and was not carried out In the hands of the contractor in relation to the apartment, at the time of its construction. The deficiency was not addressed or completed during the period when the contractor tried to deal with the dampness defects in the apartment, as documented in the documentation regarding the repairs.

The source of dampness problems in the apartment is the lack of drainage in the yard

39. Zach visited the apartment on April 7, 2022. During the visit, it was not possible to identify the places of water penetration into it, but only to see the results of the water penetration.  In contrast to the contractor's expert, the court's expert was not satisfied with this; He instructed that tests be conducted by a certified damp locator with education, training and experience in this field - Mr. Udi Raz (hereinafter Raz), in order to identify the place where water enters the apartment.  In doing so, Zach acted within the framework of his authority; The appointment decision stated: "The expert may order auxiliary tests to be conducted in the apartment if it is necessary to provide the opinion, while determining the identity of the person who performs them.  The parties will bear the cost involved in equal parts, in addition to the expert's fee.  The dates for performing auxiliary tests will be coordinated by the expert[Decision of March 9, 2022, at paragraph 8].
40. Raz submitted an opinion dated July 16, 2022, which was placed not only before the court's expert but also before the parties. In it, Rachel-Your Little Daughter detailed his education and experience: Raz graduated from civil engineering studies with a specialization in construction management and supervision and underwent courses in detecting construction failures, water and plumbing failures, and thermal imaging diagnostics [p. 4].  If the contractor wanted to dispute what was written there, he should have asked to summon Raz for questioning; He did not do so.  The other parties also did not ask to question Raz about his opinion or the course of the examinations he carried out, which were documented therein.
41. Raz performed his tests in the apartment and its surroundings on May 17, 2022. In light of their results, he marked on the plans of the apartment and the yard the places where the water entered it.  A malfunction in the water supply and sewage disposal systems, which were found to be in good condition, was ruled out.  The court's expert emphasized that Raz's work was in-depth and thorough, in a way that made his findings a solid basis for the expert's determinations [pp. 2, 18-32 and 21, 25-26].
42. Based on Raz's findings, Zach discussed the cause of the recurring dampness inside the apartment: "The major defect found in the apartment is that the water does not drain from the bedding and filling of the garden area, water finds its way into the apartment on a large scale and creates most of the failures and reactions that take place in the apartment today. The seepage pits appear to be clogged and/or not functioning.  In addition, no geotechnical pipe was located in the perimeter of the building that would have helped drain the accumulated water from the irrigation system, rainwater and natural seepage.  An excavation was carried out in a number of locations where the soil was found to be completely wet – it should be noted that the day of the test was a sunny day as well as the days before it, and there is no reason why the humidity should be so high.  There is water penetration from the balcony into the apartment[p. 9b]M/1].
43. The court's expert examined the plans submitted by the contractor and after examining them, determined as follows: "I did not find in them a suitable solution for draining the garden area. Only a seepage pit ('drilling for drainage') was planned in the corner of the lot, and there is no mention of a solution for transferring water to that cistern, such as slopes or underground pipes.  It is important to remember that this is a garden with an area of about 200 square meters, and in any case, one seepage pit, in the corner, cannot be enough for its drainage" [ibid., emphasis in original].  Zach found that the source of the dampness in the apartment was not in the sewage pipes [pp. 21, 8-13].
44. Zach also stated that he did not find any solution in the plan for draining the surface runoff water in the back of the garden; He emphasized that there is a very large failure in the rear service niche in which filling is sinking. As a result, water from the service area penetrated under the floor of the building's lobby in the entrance area of the apartment; Raz's examination found that water penetrates the apartment in this place as well [ibid.; see bottom photo on p. 10 of theM/1 and photographs on pp. 8-10 in Raz's opinion].  The documentation regarding the repairs is consistent with this: the defendants complained to the contractor about signs of dampness at the entrance to the apartment in February 2018 and then in April 2019.
45. The obvious should be emphasized: the defendants' complaints to the contractor revolved around dampness in the apartment. These shows of dampness are a sign of a problem – not the problem itself.  Shows of dampness indicate that water enters the apartment.  providing a specific response to the symptoms of dampness is not enough; The place where water penetrated the apartment and the reason for it must be located and dealt with so that it does not age.  The contractor did not do that.  As a result, the problem was on a machine in its full scope, causing dampness in the apartment from winter to winter, year after year.  It is not for nothing that an expert in the court determined that there are many signs in the apartment and its surroundings that attest to the failures in the planning and execution of the drainage to the apartment's yard, in terms of cause and effect.
46. In Zach's opinion, it was noted that the courtyard was located at an elevation of about one meter above the sidewalk and was surrounded by stone-clad concrete walls; On the outside of these walls there are signs of water escaping from the level under the grass. The proposed solution includes sealing them from the inside [pp. 10-11 inM/1 and the pictures are there].  Inside the apartment there are many appearances of plaster and paint damage at the bottom of the walls; The expert referred to photographs that documented the phenomenon in the opinions of the parties' experts, and therefore made do with sample photographs that he had taken.  This is a classic case of capillary rising water that originates from a large amount of water trapped under the floor; The undrained water bypasses the sealing of the floor and foundations and exploits capillary cracks in the concrete floor and walls [pp. 12-13 onM/1].
47. The solution recommended by an expert in the court in order to address the problem of dampness was based on the basic understanding that in order to prevent water penetration, it must be kept away [p. 13 in]M/1]. Zach stated as follows: "The findings of Udi Raz's examination leave no room for doubt.  The grass surface and niches are not drained.  This is an area of about 200 square meters, and the surface runoff water that arrives is absorbed and trapped in the clayey layer, and the capillary cracks are found in order to rise capillary to the walls".  It is necessary to carry out an underground drainage infrastructure and take advantage of the excavation to perform controlled sealing of the foundations in the walls of the apartment bordering the courtyard and the interior of the exterior walls surrounding the yard; The excavation will be used to dry and remove the trapped water and to dry the flooring fill in the rooms.  The total cost involved is NIS 130,330 plus 10% for engineering supervision and VAT.  The work must be carried out in the summer under the supervision of an engineer experienced in this type of work, at the end of each stage and before moving on to the next execution stage [ibid.).
48. In his testimony before me, the court's expert validated his determinations and conclusions in the opinion regarding the cause of the dampness defects in the apartment. They must be fully contracted and adopted.  They correspond to and explain the recurring dampness in the apartment; They also explain the failure of the work that the contractor has carried out so far, while sealing the wall bordering the apartment and the yard and sealing the laundry hiding.  They did not prevent the water from penetrating the apartment – this was despite the fact that excavation and sealing work was carried out by the contractor twice, before the apartment was sold to the plaintiffs.  These works were done without identifying the root of the problem – the lack of an adequate drainage solution for the yard, and without dealing with this fundamental problem.
49. Zach insisted that the contractor's drainage plan, which was intended to provide a solution for the removal of water from the apartment, was fundamentally and fundamentally deficient. The markings in the plan – which the contractor requested to present as slope lines for drainage purposes – do not represent slope lines in familiar engineering language; There is no biblical plan that explains what the marking represents and what the drainage planner intended with regard to it [pp. 4, 28-39].  Zach emphasized, referring to the plan that the contractor relied on as evidence that a drainage plan was made that is relevant to the apartment: "I don't see any sign of slope here, not according to the details I know in the shape of the drawing, I don't see any inscription here, no slope, it's some kind of demarcation line" [pp. 5, 8-9].
50. Zach found in the development plan markings that refer to elevation differences only in both corners of the paved surface at the exit from the living room, but not elsewhere in the yard; This means that slopes were not adequately planned to transport water to the seepage cistern that was intended to collect and dispose of it [pp. 5, 26-36]. In his words: "In both corners, the surface is planned [...] 20 cm lower than the floor of a stairwell, that's what I can learn from this plan.  [...] There is an area of a garden of about 200 meters here, [...] It says 173 is still about 200 meters, how it drains, how does the water get to the seepage cistern, we have no reference in this plan[p. 6, 1-7].  According to the development plan, it is not possible to know the level that was planned before the yard [pp. 6, 8-19].
51. Zach said that the plan presented by the contractor is missing and does not present the details of the drainage for the apartment: "There is no detail of a drainage plan here, this is a plumbing and sewage plan". When he was presented that this was the development plan, he asked: "Where is the development?" and explained: "The fact that it says a development plan here, I see, what a development plan should look like, what information it needs to give, I know it doesn't exist here" [pp. 6, 22-24, 31-32].  The development plan does not present sufficient information and planning regarding the drainage of the yard: "There's a point in the corner that says height 17, it doesn't say if it's ground level before ground, after ground, the height of development plans, there's no reference.  Compared to the 17.20 level of the apartment [...] I can point out that this is not enough [...] even if this was the intention of the planner, it is not enough" [pp. 6, 35-38].
52. Throughout his testimony, the court's expert emphasized the flaws in the development plan: "If there is a slope it should be noted in the plan please make a slope deliberately to the seepage pit, from the front of the living room surface and certainly from the back, from the back part it will be difficult to bring it down by slope only, it might have had to be lowered by underground channeling, this is what I would do[p. 8, 19-22]. He ruled out the possibility that the contractor executing in the area would "understand" and knew how to calculate the necessary slopes on his own based on the missing development plan, and set the record straight: "So now we are a new type of planning, the contractor will plan on his own in the field.  [...] A contractor who is a professional doesn't have to plan, so let's give up on planning altogether[pp. 8, 26, 28].
53. Zach insisted on the need for a complete, clear and effective planning prior to execution – planning that does not leave the discretion to the executing contractor: "In the direct section between the flooring and the surface that comes out of the living room and the seepage pit, you can open a straight line and make a slope, how to transfer the surface runoff water from the backyard to the seepage pit needs to be planned. [...] You can't avoid planning[pp. 8, 33-37].
54. The court's expert created a connection between the deficient planning and the solution he proposed in his opinion in order to complete the missing drainage infrastructure: "It rains heavily, the synthetic grass grass transfers water, the layer on which it is placed can be tuff, it can be sesame size gravel and it can be sand, these are layers of material that quickly transfers the water, the water is not trapped in this layer, until it reaches the bottom of this layer, what happens then? If the bottom of the level layer of water stands up, stands up and slowly enters the apartment, if the bottom is on a slope and drains into a seepage pit there is no problem. [...] And this is the solution I proposed." [p. 9, paras. 1-8].
55. Zach did not dispute that according to the development plan, a seepage pit was planned in the yard; He explained that the pit must function by means of a threaded pipe that is buried in the ground, absorbing moisture from the ground along its entire length and transferring it to the pit. The seepage pit appears in the plan, but not the threaded pipes; The plan does not show how the water should be collected from the yard and drained into the cistern.  The court's expert reiterated that what should have been seen in the plan does not exist in it, and that there is no evidence in the field to show that it was carried out, in a manner that created the problem of the lack of sufficient drainage [pp. 10, 28 to 11, 37].  This must be addressed by laying a chain pipe that will collect the water and transfer it to the seepage pit [pp. 12, 5-11].
56. The court's expert ruled out the possibility of relying on the natural disposal of the water, without means that would lead it to the seepage pit. when the natural soil seeps in, there is no need for a drainage solution; This is not the situation here, and there is no seeping sand in the vicinity of the apartment [pp. 23, 26-31].  Zach: "The very fact that they drilled a seepage pit is a sign that the layer of sand is at a greater depth, so they drilled into it, all we have to do is bring the water into the pit[p. 24, paras. 1-3].
57. The court's expert held that the lack of planning and the lack of execution of the infrastructure for draining the area and transferring water to the seepage cistern did not exhaust the causes of the dampness problems in the apartment; Even in the perimeter of the building in which the apartment is located, no drainage was done [pp. 12, 18-21]. If such a response is provided as suggested by the expert in the opinion, then the one seepage pit that exists in the yard is sufficient.  In the current situation, there is no relevance to the contractor's claim that in the area of the project on which several buildings were built – beyond the area of the building in which the apartment is located – a total of eight seepage pits were installed [pp. 12, s. 34 to p. 17].
58. In light of the deficiencies in the planning and execution of the drainage plan, several combined actions must be taken in order to solve the problem and eliminate the cause of dampness in the apartment. Zach emphasized that according to Raz's examination, the area is full of water, and that water is also stagnant, including under the floor in an apartment that is a suspended floor.  The findings of the contractor's expert provide support for this; He documented a rifle crumbling on the floor in many places in the apartment.
59. These are the actions that the court's expert determined must be taken in order to solve the problems of dampness: the area must be dried during the summer by digging, pumping if necessary according to the amount of water, and allowing the water to come out and dry. Afterwards, a 20 cm wide excavation should be carried out around the apartment throughout the entire area of the yard and a threaded pipe should be placed in the excavation that will collect the water and drain it into the seepage pit.  the excavation is necessary to lay the threaded pipe; During this time, it will be possible to test whether the foundations are sealed.  If they are not sealed, they must be sealed.  In a situation where the foundations are sealed and a chain pipe is placed for drainage, water cannot penetrate the apartment [pp. 14-35; pp. 15, 2-3, 23-25; pp. 19, 22-24].  The presence of water in the apartment is evidence that there is no drainage infrastructure in the yard and that the foundations are not sealed.
60. When Zach was confronted with the contractor's claim that the solution he proposed was different from the original plan, he said that there was no evidence that planning had been made; The solution is intended to create a drainage that does not exist today [p. 15, 4-14]. Since there is currently no drainage solution and the soil in the yard is saturated with water, an excavation must be carried out in the yard to ensure that the water reaches the seepage cistern and it is not possible to suffice with an excavation in the perimeter of the apartment [pp. 15, 34-37].  A drainage solution must ensure that the water is removed; If they are removed, they will not enter the apartment [p. 16, 2-3].
61. The court's expert made a clear distinction between dampness manifestations and their cause, in terms of cause and effect. "I need to remove the water under the apartment, otherwise the water will punish me and will always find a way to enter the apartment, this is the unsympathetic property of the water, it will always find a way to get in, capillary rise, capillary cracks, you can rely on them[p. 18, paras. 3-5].  This testimony emphasizes the extent to which there is nothing in the claim that dampness in the apartment that was in one place did not recur in the same place; If they return somewhere else, it is a sign that the penetration of water into the apartment continues and the cause of the dampness remains untreated.
62. The solution proposed by Zach is intended to achieve the goal of keeping the water away from the apartment while creating drainage: it is necessary to make sure that there is an infrastructure in the yard that includes slopes that will direct and lead the water to the seepage cistern; In areas where there are no direct and immediate slopes, a chain pipe should be laid that will absorb the water and transfer it to the cistern. In the current situation, it is not possible to settle for a partial solution: Raz found that the filling soil in the yard is wet, as is the infrastructure under the floor of the apartment, in a way that shows that in recent years, rainwater has not reached the seepage pit.  A comprehensive solution is required to ensure that all the water is collected and reaches the seepage cistern, using the proposed solution [pp. 16, 11-27].
63. Zach rejected the contractor's claim that the target and flooding tests should have been carried out in the apartment כדי To check whether the foundations are sealed [p. 14, 29-31], and explained: "[...] When I was in the apartment I realized that this is not the first time unfortunately I have seen cases like this that it is a capillary rise, a capillary rise through capillaries and capillary cracks in the concrete bypasses any sealant, bypasses the sealant, it comes from comparing pressures, this is one of the reasons we do not recommend the height of the garden as the height of the internal flooring, but lower, and then there is less pressure. [...] You see clear signs of water entering behind the panels [...] bypass the seal, this is the meaning of a capillary rise.  [...] If you don't want water to get in, keep it away, that's the essence of the solution here, and the more careful we all take on drainage, the less we'll be in court on the issue of water entering[pp. 20, s. 26 to p. 21, s. 2].  The contractor's expert gave his opinion without conducting the target and flood tests, in a manner that puts in the right light the contractor's request to present their non-performance as lacking in Zach's opinion.
64. The opinion of an expert in the court is thorough and in-depth. He was assisted by a certified locator who used the necessary equipment and accessories to locate the places where water penetrates the apartment.  It was found that water penetration into it originated in the yard adjacent to the apartment (also known as the garden).  Raz and Zach's pointing to the yard as the source of the problem, each in his area of expertise and responsibility, corresponds to the totality of the evidence and is consistent with them.
65. There is no reason to doubt the competence of the expert to give an opinion on the subjects of the opinion [pp. 21, 38 to 22, 18]. In a situation in which the contractor did not provide proper planning for the drainage of the yard and did not carry out sufficient drainage, the expert's determinations stand firm and are not impaired by the appearance of the absence of an excessive quotation of standards and regulations that does not advance the decision of the actual dispute [pp. 22, 37 to 23, 11].  At the level of substantive content, there is no deficiency in the expert's opinion; The opposite is true.
66. The court's expert's determination that the source of the problem lies in the lack of proper drainage of the yard is externally reinforced. The documentation regarding the repairs shows that during the period when the defendants complained to the contractor about repeated appearances of dampness in the apartment, the contractor understood and knew that the source of the problem was in the yard.  In the spring-summer of 2018 and later in the same season of the year Next, 2019, he carried out excavation and sealing work on the wall between the apartment and the yard and in the laundry hiding; The work was required with the understanding that the existing sealant was not sufficient to prevent water from penetrating the apartment from the yard – in a way that caused signs of dampness in various places in it.  The signs of dampness were the result of capillary seepage of water and evidence that water had entered the apartment and collected under the flooring.
67. There is no evidence in the documentation presented by the contractor regarding the repairs to his attempt to check and locate the reason why water continued to enter the apartment from the yard, despite the fact that after the winter of 2017-2018 sealing the wall bordering the yard and the laundry hiding place was sealed. The return of dampness in the apartment next winter, in 2018-2019, was an indication that sealing is not enough to solve the problem; In order to prevent water from entering the apartment, it is necessary to find out the source of the problem and understand why water in the yard does not drain but rather collects and penetrates the apartment.  In this reality, which is reflected in the documentation regarding the repairs, the drainage system in the yard is the natural and immediate suspect.  The contractor was not presented with documentation regarding an attempt to inspect and treat the drainage system or to perform any other test that would locate the cause of the dampness problems – unlike its manifestations and results.
68. From the testimony of the contractor's witness, Hoffman, it emerged that the contractor did not take full disclosure of the conduct regarding the apartment during the period when it was in the defendants' possession – and in which they repeatedly complained about repeated appearances of dampness. Hoffman was asked by the court whether, in light of the accumulation of inquiries regarding dampness in the apartment, the contractor moved from response to initiation in order to check whether there was a more serious problem that needed to be addressed.  He answered as follows: "Behind the scenes in the offices, they always check the history of the apartment, what has been done, what needs to be done now, there is always some kind of intra-departmental action, whether it is the supervisor and his manager, there is some kind of implementation action, yes".  The contractor did not disclose the documentation and information about these internal discussions and did not refer to this in the affidavit of Hoffman, the director of the customer service system [pp. 35, 20-31].
69. Hoffman himself never visited the apartment and lacked personal knowledge about it [pp. 27, 22-27]. The contractor refrained from hearing the testimonies of the professionals and officials whose names appeared repeatedly, consistently, on the documentation regarding the repairs.  Concealment of relevant documentation and refraining from summoning relevant witnesses establishes evidentiary presumption against the contractor that he is able to resist and provides support for the opposing party's position [Civil Appeal 465/88 The Bank for Finance and Trade in a Tax Appeal v. MatityahuIsrSC 45(4) 651, 658-659 (1991); Civil Appeal 548/78 Anonymous vs. Anonymous, IsrSC 35(1) 736, 760 (1980)].
70. Prior to the sale of the apartment to the plaintiffs, the defendants also knew that the yard was suspected of being the source of dampness problems in the apartment. This is reflected in the defendant's testimony.  On October 23, 2019, after the sale contract was signed and before the apartment was handed over to the plaintiffs, the defendants called on the contractor to treat the dampness in the bathroom [pp. 58, 9-13].  The contractor examined and found that the source was not moisture entering the apartment, but rather from the private installation of a deck by the defendants; The contractor nevertheless repaired the dampness manifestations, although this time they were caused by the defendants' liability [paragraphs 16-17 inP/4].  The manner in which the defendant described this revealed his knowledge that the contractor attributed the dampness manifestations to the yard on which the defendants' previous complaints revolved.  In his words: "Danya Cebus said that this dampness has nothing to do with the garden and these things[p. 58, paras. 17-29].  It was not a statement of inadvertence, of the pressure of the cross-examination, but of consistent testimony.  Later on, too, the defendant repeatedly referred to the appearance of dampness in the apartment as something related to the garden [pp. 62, 21-22; pp. 70, 21-26; p. 76, 25-29].
71. The court expert disagreed with the contractor's expert's conclusion, according to which the source of the dampness appears in the absence of sealing of rollers in the bathrooms in the apartment [M/1 p. 13, second paragraph]. The source of the dampness is not in the bathrooms but in the yard; Raz's tests using a thermal camera confirmed this.  the moisture content in the bathrooms is less relevant; As long as there is water under the concrete floor of the apartment that originates in the yard, it is obligatory to remove it and remove it [pp. 17, 7-34].  This determination should also be adopted: it is consistent with the work carried out by the contractor according to the documentation regarding the repairs, while making a repeated attempt to seal the wall between the yard and the apartment; It is also consistent with the contractor's representations to the defendants that the source of the dampness is in the garden.
72. The totality of the evidence – Raz's examinations and findings, the professional and reliable testimony of the court expert, the work that the contractor carried out in an attempt to deal with dampness in the apartment according to the documentation regarding the repairs, and the defendant's testimony regarding the contractor's pointing to the garden as the source of the problem – all of these lead to the conclusion that the root of the evil lies in the lack of a proper infrastructure for draining the yard adjacent to the apartment.

The contractor did not contradict the determinations of the court's expert

73. It has already been noted above: the contractor refrained from hearing relevant testimonies from the direct parties involved in the attempt to repair the defects during the period in which the defendants held the apartment. He did not testify a single one of those whose names were repeatedly mentioned in the documentation regarding the amendments.  Instead, he relied on the testimonies of managers who had little knowledge of what was going on in the apartment and who relied on speculations and conjectures, without beginning to declare things that were not their knowledge and not in their area of expertise.  The contractor's witnesses, all of them, left an unfavorable impression.
74. The contractor, Uri Shogal, is the manager of the Danya area; During the construction of the project, he served as a senior manager [hereinafter Shogel; Sections 2, 3 and 5 inP/3]. Instead of hearing the parties involved in the installation of the drainage infrastructure in the apartment's yard on behalf of the contractor – subcontractors over whom Shogal was in charge as part of his position in Danya, Schugal sought to persuade them that the drainage was proper because the project had been granted a occupancy permit by the authorities (Form 4).  Shugal stated that the authorities had conducted rigorous inspections that included various patrols, otherwise a occupancy permit would not have been granted [paragraphs 6-7 inP/3].  This is clear evidence of reasoning.
75. The person who built the drainage system in the area was not brought to testify that he had worked according to the plans and knew what to do, including creating slopes (which are missing in the plan) and taking measures (which are not included in the plan) in order to ensure that rainwater would be absorbed and transported to the seepage pit. The contractor's construction inspector with regard to the apartment was not brought to testify.  The contractor's work diaries were not presented that would reveal the work process on the drainage system in the yard – in a manner that would refute the court's expert determinations regarding its defects and shortcomings.
76. The entity that was involved in the granting of the occupancy permit on behalf of the authorities was not brought to testify as to what was his connection to the inspection of the drainage system in the yard of the apartment. Who can argue that even those anonymous officials on behalf of the 'authorities' were not negligent and did not rely on the contractor saying that he had built a drainage system for the yard? The court discusses and decides on the basis of evidence, not on assumptions.  Shogal's testimony on this issue adheres to the assumption that no foundation was laid to prove it, in a manner that is credited to the contractor's obligation.
77. Shogel confirmed that the planning of the apartment and building systems is not within his responsibility; If a faulty design is provided, then this is what the contractor will do. This also applies to the execution of the slopes that should be part of the planning of the drainage system [pp. 14, 29-33; p. 15, 2-3].  Shogel assumed that proper planning had been done for the drainage system for the building and the apartment and that the planning would be implemented in the construction; Beyond a casual assumption, his testimony did not provide anything [pp. 16, s. 28; p. 17, s. 9-11].
78. Shogel was asked about the planning for the drainage; In reply, he provided a stutter: "At the assumption, so we executed according to the plan, there is, me, me, me, but we did it as if[p. 18, 35-38]. The obvious must be said: drainage systems for the yard in a ground floor apartment are not planned 'as if' and do not carry out 'as if'.  When we do this 'as if,' the result is the moisture damage that we see in the apartment here: thorough, repetitive, which the contractor has not been able to eradicate for more than two years.  In his distress, Shogel again sought to prove the execution of a complete and proper drainage system, based on the fact that the building was given a occupancy permit [pp. 19, 9-12].
79. The end of it testifies to its beginning: the opinion of an expert in the court indicated that there is no good and functioning drainage system in the yard. The result is repeated appearances of dampness since the apartment was populated until today, despite the contractor's representations that he checked and repaired and repaired again.  The necessary conclusion is that the factors on which the contractor relied to inspect it for the purpose of granting a occupancy permit, and for any other purpose, failed no less than he did in the planning and execution of the drainage infrastructure.  Occupancy permit granted on September 8, 2016 [Section 8 of theP/3].  The defendants, who received possession of the apartment in December 2016, complained about dampness in the apartment about a year later, in November 2017.
80. The court's expert noted that in general, in the usual course of things, in the first winter there will be no signs of water entering the apartment, it is possible that in the second day there will be no signs of water entering the apartment, but in the third – certainly; It depends on the amount of rain each winter [pp. 24, 39 to 25, 2]. In the apartment in question, dampness shows appeared a year after it was occupied.  All of the contractor's repairs were not enough to eradicate the dampness and prevent the renewal of its appearance inside the apartment.  This, too, shows that there is a fundamental problem with regard to the apartment – a problem of the lack of a good drainage infrastructure in the yard, the kind that an expert pointed out in court.  In these circumstances, there is nothing in Shogal's testimony that no claims were received by the contractor in relation to other garden apartments in the project [paragraph 9 of theP/3].  Proper execution of drainage in other apartments does not, by magic, negate the fundamental defect in the drainage with respect to the apartment in question.
81. Shogel's involvement in what happened in the apartment, and as a result of his actual knowledge of it, was sparse and in fact purely formal. Shogel never entered the apartment: not during the construction process, not during the repair process when it was in the defendants' possession, and not during the trial inquiry [pp. 14, 22-23].  He did not see anything in it and did not examine anything in it [pp. 20, 5-6, 12-14].  In his affidavit, Shogel presented himself as someone who understands and is authoritative; From his testimony before me, it emerged that he did not know how the contractor was able to solve the problems of dampness in the apartment before selling it to the plaintiffs, even though he was given opportunities to do so.  There were apartments that Shogel accompanied after handing over possession; The apartment in question was not one of them and he had no personal knowledge of it [p. 12, 14-26].
82. Through Shogal's affidavit, the contractor tried to make improvements in the areas of expertise. There is no basis for this.  Shogal, who lacked any concrete knowledge of the apartment and did not bother to enter it even once, before submitting his affidavit, may not be a factor that will testify to the cause of the dampness problems in the apartment, let alone point to causes of dampness that were not even included in the contractor's expert opinion.
83. Schugal lacks the status to find fault with Raz's work and the opinion of a court expert. Thus, for example, he claimed that Zach did not perform a target check in the apartment.  Did the contractor, in the process of repairing the apartment, perform a target check in order to locate the source of the problem? Did the contractor's expert for the purposes of the claim perform such an examination? This, Shogel did not know; He could provide nothing but conjecture:Could be in customer service they knew how to say" [p. 13, 10-30].  This is also how he answered an explicit question of the court [pp. 13, 31-37].  He did not hesitate to claim that it is possible that the tenants did not let in – which shows that he did not bother to check the documentation regarding the apartment in the customer service department of the contractor, his employer, in order to see how many times the door of the apartment was opened for the contractor and his representatives to repair what needed to be repaired [p. 14, paras. 12-2].  In his cross-examination testimony, Shogel confirmed this [pp. 17, 18-23].
84. Shogel's testimony did not help the contractor; It should have been avoided. She provided pretension rather than evidence, and her value for clarifying the dispute was insignificant.  The court was forced to wonder why his testimony was brought, and then he answered: "To help the company[p. 18, paras. 14-16].  It would have been better if the contractor had focused on bringing evidence that would assist in the investigation of the truth – in accordance with the purpose of a judicial proceeding.
85. The contractor sought to refute the findings and determinations of an expert in court through the testimony of Mr. Alex Kor, the drainage planner in the project (hereinafter Cold). In Kor's affidavit, it was noted that he was acting as the team leader of the Plumbing and Fire Department at Gilboa Consulting Engineers in Tax Appeals – a company that specializes in planning water and drainage issues; The apartment is part of a project that the company planned [paragraphs 2-3 of theP/5].  The drainage for the apartment and the Kor project was personally planned [pp. 41, 30-39].
86. Kor's testimony was plagued by obvious difficulties and revolved around matters in which he had no knowledge. He stated: "The plumbing and drainage work of the buildings in the project, and in particular the plaintiffs' apartment, was carried out in accordance with sanitary plumbing plans planned by Gilboa Engineers[Section 4 of theP/5].  A source was unable to testify about the manner in which Carried out plumbing plans; His role was limited to mere planning.  His testimony that the execution was carried out according to plan expressed an opinion, not knowledge.  In cross-examination, Kor confirmed that he was a plumbing engineer, not a plumbing contractor, and did not engage in execution [p. 38, s. 5; p. 42, s. 2].
87. Kor took the liberty of criticizing the opinion of an expert in the court and finding flaws in it [paragraphs 5-8 inP/5]. This is not objective testimony, but rather the testimony of a person with a direct, self-interest: adopting Zach's opinion means that the planning provided by Kor was flawed and incomplete.  Kor's testimony did not carry with it persuasive power and did not show that he actually provided proper planning for draining the yard – contrary to Zach's assertions – so that the severe and recurring dampness problems in the apartment did not stem from a defect in the drainage.  Kor did not deal with the contractor's documentation regarding the repairs, which pointed to the yard as a source of dampness in the apartment.
88. Like Shogal, Kor also sought to conclude that the planning he prepared for the drainage was proper and was carried out by the fact that the project was given a population permit: "What we are planning does not mean that it was done, but during the execution we checked for Form 4, including a corporation that came and checked all the levels in the planning that was planned, so it was compatible and it is approved" [p. 42, 9-11]. This is a belief that has no basis.  The contractor operating in the area who built the drainage infrastructure in the yard was not summoned to testify.  The representative of the corporation that Kor asked to rely on was not invited to clarify what exactly he checked.  Prior to delivery, at the time a occupancy permit was issued, there was horticultural land in the yard that the contractor provided; None of the parties involved in the provision of Form 4 had the opportunity to examine and examine the slopes beneath the horticultural soil and the manner in which they function to collect water and divert it to the seepage pit.
89. An expert in the court determined that the soil in the yard does not seep and therefore a drainage solution is needed that will collect the water from the surface runoff and lead it to the seepage pit; The design of a seepage pit shows that the planner knew that there was no seeping soil in the area that could provide the drainage solution. This did not prevent a source from claiming that the soil in the yard of the apartment seeps and therefore all the water can be collected into the ground and does not need drainage; He relied on this in the design of the drainage infrastructure, which was intended to be a backup for the natural seepage of the soil.  On this issue, which is essential to the assessment of his professionalism – and in accordance with the evaluation of his testimony – Kor gave a contradictory and changing testimony.
90. At first, Kor confirmed that if the seepage pit was sealed, the water would stand in the yard; When it was presented to him that according to his own opinion, the yard was seeping out and that the drainage pit had been planned by him only for the sake of safety, he changed his testimony and now said that the yard was supposed to absorb the water even if the seepage pit was not functioning [pp. 42, 19-23; 31-38]. He later proposed a third version: if the seepage cistern is not functioning, the water will come out in the municipal drainage system [pp. 46, s. 35 to p. 47, s. 18].  Kor admitted that he didn't even know what kind of soil was placed in the yard and if it seeped in; He is a plumbing engineer, not a land consultant [p. 44, 7-8].
91. Kor's testimony was detached from the fabric of evidence that expressed the conduct regarding the apartment. When confronted with the contractor's efforts to deal with moisture defects in the apartment, Kor stated that the contractor did not contact him during his handling of the defendants' complaints about dampness and did not hesitate to say that this was due to the fact that there were no problems.  In his words: "There were no problems before, I don't know, only now we received the claim as if there were some problems with the apartment, regarding the building" [p. 37, paras. 28-36].  This is innocence that cannot be accepted; It was in line with the unprofessional impression of the cold testimony and with his desire to distance himself, no matter what the flawed and incomplete planning [pp. 38, 5-6].  The dampness problems in the apartment – which were defined by the contractor himself as 'severe' – were not discovered or known shortly after the filing of the lawsuit, but much earlier, before the end of their first year of residence in the apartment of the defendants, its first purchasers.
92. The testimony of Kor, the drainage planner, did not detract in any way from the determinations of the court's expert as to the cause of the recurring dampness problems in the apartment. The testimony of Shogal – the contractor's representative during the construction of the apartment, also left the determinations and findings of the court's expert intact.  This is also true with regard to the testimony of the contractor's witness, Dor Hoffman, who held the position of manager in the contractor's customer service system – a system that handled the defendants' complaints after they received possession of the apartment [below] Hoffmann; Sections 3-5 inP/4].
93. Hoffman sought to teach the contractor a right by expanding the discussion of the delivery protocol that was made when the defendants received possession of the apartment at the end of its construction; It was noted that at the time of its compilation on December 1, 2016, it listed reasonable defects that had already been corrected in the first year of the defendants' residence in the apartment, during the inspection. It was emphasized that the defendants were meticulous, did not detract anything from the delivery protocol and did not raise claims regarding dampness and sealing problems [paragraphs 6-8 inP/4].  There is nothing in this: as will be clarified below, general defects in the apartment are not the focus of the dispute and are negligible in relation to the problems of dampness in it.  Moisture problems are not something that apartment buyers can find out exists at the time of receiving possession.  The court's expert noted the typical timeline during which moisture defects are discovered in relation to the date of completion of the construction.  After the apartment was handed over to the defendants, the contractor was repeatedly called upon by them to deal with repeated moisture defects that were discovered in it; He defined them as severe moisture defects.
94. Hoffman noted that the damp spots that the defendants complained about were treated so that no repeated complaints were received about this or that location in the apartment that had already been treated [paragraphs 10-12 inP/4; See also pp. 29, 10-17, and p. 29, 36 to p. 30, 4]. I cannot accept this.  The contractor's handling of the apartment, in response to the defendants' complaints, did not yield the desired result.  The dampness was not threatened, but rather renewed.  As a result, in two consecutive years, after the winter season, the contractor carried out excavation and sealing work on the wall separating the apartment from the garden and in the laundry hiding.  They were not to help; In the winter that immediately followed, shortly after the sale of the apartment and its delivery to the plaintiffs, the dampness again showed its signs inside the apartment.  The court's expert explained this: As long as the yard is not properly drained, the water penetrates the apartment, collects under the flooring, penetrates through it through cracks in the concrete and seeps upwards into the walls, creating characteristic appearances of swelling and peeling.
95. As long as the cause of water penetration into the apartment has not been addressed, there is no real significance to the fact that signs of dampness returned inside the apartment in a different place than the one in which they were discovered earlier. Hoffman himself noted that dampness by its nature can be elusive and sometimes require repeated or extensive actions to locate its source and eradicate it [para. 10 b.P/4].  Despite the actions enumerated in the documentation regarding the repairs, the contractor did not take advantage of the time that the defendants held the apartment in order to locate the source of the dampness problems and treat it so that the phenomenon of dampness in the apartment would not recur every winter.
96. Hoffman, like Shogel, lacked personal knowledge of the apartment. He never visited it and did not examine anything in it [pp. 27, 22-27].  He confirmed that the delivery protocol that was attached to his affidavit – with reference to its contents – was illegible; According to him, he has a more readable copy in his possession that was not attached [p. 27, 31-37].
97. Hoffman was unable to deal with the determinations of the court's expert regarding the source of the dampness and was unable to reconcile them with the contractor's attempts to provide a solution to the dampness during the significant period that elapsed between the delivery of the apartment to the defendants and its sale and transfer to the plaintiffs. Hoffman did not dispute that the contractor was given an opportunity to correct the dampness and its cause even before the apartment was sold to the plaintiffs [pp. 22, 23-36].  When he was asked to explain the discrepancy between the contractor's attempts to solve the problem of dampness even before the sale of the apartment and the determinations of an expert in the court regarding the existence and severity of the problem, he found refuge in the claim that the plaintiffs had not informed the contractor prior to filing the claim that there was dampness in the apartment [pp. 22, 37 to 23, 4].  This is an answer that indicates evasion, not coping.
98. Indeed, the plaintiffs did not inform the contractor of the existence of dampness in the apartment after they received possession of it; I will explain the consequences of this later. At the same time, the plaintiffs' conduct after the purchase of the apartment did not matter the determination that the contractor's attempts to repair what needed to be repaired and prevent the penetration of water into the apartment were unsuccessful; The cause of the dampness, which stems from the lack of adequate drainage in the yard, remains the same, along with the recurring dampness inside the apartment.  Hoffman, who does not have the education of an engineer or an engineer, lacks the status and competence to disagree with the opinion of an expert in court [pp. 27, 20-21].
99. The findings of the court's expert are also valid in light of the weak testimony provided by the contractor in order to validate the actions he performed during the defendants' possession of the apartment, when he was given repeated opportunities to act in a professional and serious manner, to locate the source of the problem and to provide it with a complete solution that would solve it once and for all. Hoffman was asked by the court whether the contractor had repaired the dampness in the apartment before selling it to the plaintiffs and answered: "We came to fix it every time we were called"; When the court was careful with him, he admitted that the dampness still existed [pp. 23, 13-21].
100. Hoffman shifted the responsibility for the fact that the dampness problem remained intact at the doorstep of anonymous 'contractors' employed by Danya in the process of handling the defendants' complaints: "Every time we reached the standard, we worked according to the contractors' recommendations, I understand that the dampness was not solved, at the same time, it is also sometimes difficult to locate the dampness, at the point in time when we arrived and worked according to the recommendations, I assume that everyone, all parties, hoped that it would solve the problem, but why beyond that, I don't know how to answer[p. 23, 30-33; See p. 24, paras. 2-8]. Those external contractors who were employed in handling the defendants' calls were not summoned by the contractor to testify; Their professionalism and training to locate the cause of the dampness and treat it as it should have been proven.  In the documentation presented by the contractor, there is no evidence of the employment of an expert dampness locator, a poster hired for this purpose by an expert in the court [pp. 28, 24-39; p. 33, 32-35].  As noted, Hoffman admitted that internal discussions were held with the contractor regarding the apartment, due to the repeated claims of dampness in it, but the documentation about them was not disclosed.
101. Hoffman admitted that in the bulk of the documentation regarding the repairs, the nature of the work that was carried out was not recorded [p. 33, para. 17]. He speculated that perhaps the executing contractor or his supervisor had told the defendants verbally what had been done, but this was not recorded in the scriptures [pp. 33, 27-31].  When the documentation refers to cosmetic repair, the reference is not to a substantial treatment to locate the cause of the dampness and provide a response to it, but to the final stage of renewing the plaster and paint at the place where the work was performed: "Cosmetic repair is after [...] The repair of the dampness, plaster, putty, paint needs to be repaired[p. 29, paras. 1-5].
102. Regarding the course of events behind the documentation regarding the repairs, Hoffman said that if necessary, an inspector comes to diagnose the problem, then if necessary, contractors come to take care of it, and at the end of the work, the tenant is required to sign a work order that the repair has been made. In an outrageous move that exposed a lack of professionalism, Hoffman sought to conclude that complaints about dampness received a good response from the fact that after each repair, the defendants signed that the repair was carried out to their satisfaction.  In his words: "So will the tenant sign a work order when no work has been done?"; "There is also a supervisor who accompanies the work who is sometimes also in the apartment, but yes, as soon as the application is signed, the application is closed" [p. 28, paras. 5-22; 39]. The contractor's inspectors who accompanied the attempts to repair the apartment, whose names appear on the documentation regarding the repairs, were not summoned to testify, despite its importance; This indicates the contractor's lack of real ability to deal with the determinations of a court expert.
103. The defendants' signature on one form or another of the contractor is not evidence of the quality of the repair carried out by the contractor, and certainly not of his authority or ability to provide a real solution to the problems of dampness in the apartment. The signature is evidence only that the contractor came in response to the complaint and carried out work in the apartment at his discretion, and nothing more.  There is a great deal of hypocrisy in the claim that the contractor has the elusive nature of moisture defects that are not easy to detect and eradicate, but the apartment owner who lacks understanding of construction will not be able to benefit from this: if he signs the execution of the work, it is a sign that it was performed correctly.  The defendants' signatures are not evidence of the professionalism of the repair carried out by the contractor, or that he discovered the source of the dampness and provided him with a solution.
104. Hoffman's testimony showed that the contractor did not try at all to locate the inextricable cause of the renewal of the dampness in the apartment and made do with the treatment that was mainly ad-hoc: "Whenever we were called the dampness was focused on the specific place in the apartment, Danya worked according to that specific location and according to the opinion of the contractors who worked in the apartment" [p. 24, paras. 26-27]. He stuck to it: "that there was targeted dampness in the apartment, according to locations in the apartment and not in the whole apartment, and every time there was a request for this zip code, we came" [p. 36, paras. 1-2].  In the same breath, he reiterated that he had never been in the apartment [ibid., 4-5].
105. In light of all this, I adopt the determinations of the court's expert. The cause of dampness in the apartment is still present; It is expressed first and foremost in the lack of sufficient drainage for the yard of the apartment.  Due to the lack of proper drainage, the water enters the apartment, in a way that shows that even the sealing of the foundations carried out by the contractor (as predicted from the documentation regarding the repairs) does not provide a solution to the drainage problems and does not prevent the dampness.
106. At the same time, I reject the plaintiffs' claim that due to the dampness defects, the apartment is unfit for habitation. A court expert did not determine this.  The plaintiffs did not send him clarification questions, whether on this matter or any other matter, nor did they address him any questions when he appeared to testify at the contractor's request.

The synthetic grass in the yard is not the cause of dampness

107. The apartment was handed over to the defendants with horticultural land supplied by the contractor in the adjacent yard. The defendants placed synthetic grass in the yard.  The defendant testified that this was not done close to the beginning of the defendants' residence in the apartment, due to budgetary considerations and the ability to finance.  The defendants called on the contractor to deal with dampness even before the grass was laid [p. 77, paras. 22-39].  The plaintiffs purchased the apartment and took possession of it with the synthetic grass lying in the yard and did not change it [paras. 28-32 at p. 37].
108. Raz was of the opinion that the synthetic grass was one of the causes of the dampness problems in the apartment [p. 43 of his opinion]. Zach rejected this possibility, pointing to the lack of drainage in the yard – along with a lack of sealing of the foundations in the walls of the apartment, as the reason for the recurring dampness in the apartment.  At the time of the submission of the evidence, the contractor jumped on Raz's hypothesis that he had found a lot of loot.  In the affidavits, his witnesses pointed to a unified chorus on the grass as the source of the problem.  This is intended to distance the contractor from the planning and execution failures that caused the severe dampness problems in the apartment; If the cause of the problem is the grass laid by the defendants, then the liability falls on them, the lawn installers - and the contractor is exempt.  However, there is no basis for this.
109. The court's expert ruled out the grass as a source of water entering the apartment and insisted that the cause of this was the lack of a solution for transporting water from the yard to the seepage pit located in it. the synthetic grass has a bottom drainage sheet and is placed on a layer of draining material; If there were slopes beneath this layer for drainage purposes and the rainwater would have been diverted to the seepage cistern, there would have been no accumulation of water in large quantities in the ground in the garden area and under the apartment [p. 9b]M/1].  If proper drainage had been planned and carried out for the seepage pit, then the placement of synthetic grass on top of the horticultural soil would not have thwarted or damaged the drainage.  Zach emphasized: "The seepage pit [...] The basic assumption is that it is buried, that the drainage to it is carried out under the grass" [pp. 5, 16-17].
110. I adopt the expert's determinations on this issue. It has additional, weighty supports that indicate that the grass is not the cause of the dampness problems in the apartment and is not the reason why the yard is not drained in the necessary way.
111. First, shows of dampness in the apartment appeared and recurred in the period before the lawn was laid. At the end of November 2017 and in 2018, the defendants complained to the contractor about dampness in the apartment; The contractor arrived and performed actions intended to treat it, without locating the cause.  At that time, grass had not yet been laid in the yard, so the dampness problems could not be attributed to it.  The same shows of dampness repeated themselves afterwards, in 2019.  This is due to the fact that the reason for water penetration into the apartment is not the synthetic grass, but something else.
112. Second, the contractor carried out work on the apartment in order to deal with recurring damp appearances in August 2019. The sale contract between the defendants and the plaintiffs was signed at the end of September 2019.  The plaintiffs saw the apartment when they were interested in purchasing it in August 2019 at the latest, when the grass was already there.  The contractor was called upon to deal with dampness in October 2019 as well, after the sale of the apartment to the plaintiffs and before it was delivered to them (in an incident in which he attributed the dampness to a private installation by the defendants, but repaired it).  If there had been a genuine claim that the grass that the defendants had placed in the yard was causing dampness in the apartment, it would have been presumed that the professional who sent the contractor to the apartment on those dates would have immediately identified it, would have alerted the defendants to this and expressed it in the documentation they produced.  The problem is that in the documentation that the contractor presented regarding the repairs, there is no reference to the synthetic grass, even in a hint.
113. Finally, in the opinion of the contractor's expert, which the contractor adhered to throughout the investigation, there is no reference to the synthetic grass as a full or partial cause of the dampness problems from which the apartment suffers. The contractor's expert refrained from making any statement about him.  The contractor's witnesses were forced to confirm this in their cross-examination and did not know how to reconcile it with their statement that the source of the problem was the grass.
114. As stated above, the court's expert determined that the source of the dampness problems in the apartment is the lack of drainage in the yard, in a way that causes water to enter the apartment instead of being transported to the seepage pit. He also ruled that grass installed on the upper level of the courtyard surface is not likely to disrupt or thwart drainage that should be found deep in the ground beneath it, while installing slopes that will direct the water to the seepage pit.  In his distress, the contractor tried to claim that the synthetic grass that was placed by the defendants in the yard was installed in a defective manner – not by an expert, in a way that damaged the drainage infrastructure that was underneath it.  This argument is also rejected for all the reasons enumerated above.
115. A problem with the way the lawn is installed must be proven with real evidence, not with nonsense. It is not sufficient to reasoning that it is not based at all, and no evidence has been brought to prove it.  If the contractor wished to show that the laying of the grass was done in a defective manner that affected the drainage system of the yard, then he should have asked the expert on his behalf to dismantle some of the synthetic grass surfaces, examine what was underneath it, and give this explicit expression in his opinion.  It has already been noted: The contractor's expert opinion does not Every Trace of the Grass Even if only in a word.  Zach's determination that laying the lawn would not have harmed the drainage of the yard deep in the ground therefore stands, if it had been planned and installed.
116. In these circumstances, there is no need to address the question of whether the contractor gave the defendants, together with the apartment, written instructions (in a treatment book or in some other way) regarding the laying of synthetic grass. It is enough to determine that the grass does not cause the dampness problems in the apartment and has no effect on them.
117. During his visit to the apartment, an expert in the court found that the level of the grass in the yard is identical to the level of the flooring in the apartment; He noted that this is not a recommended situation and that it is desirable that the level of the yard be lower than the level of the apartment, for drainage purposes. In planning the solution for the lack of drainage infrastructure in the yard, the expert took into account the plaintiffs' desire that the level of the yard not be lowered; Their desire was justified by the fact that no obstacle would be created when their children left the apartment barefoot and into the yard.  Zach explained that this is an acceptable requirement [p. 7, paras. 1-20].
118. Even taking into account the comparison of the grass levels in the yard and the flooring in the apartment, the fundamental reason for the dampness problems does not lie in this, but rather in the absence of an underground drainage solution in the yard under the lawn. Zach referred to this: "It is possible to live with the situation in which the grass level is level (unclear, the flooring) as long as there is a quick drainage at the bottom of the grass to an underground drainage, and this is the solution I recommended to do.  [...] As long as there is no quick drainage of the lawn, no planning for drainage, no preparations for drainage, so it is true that if the grass was lower 20 centimeters then there would be less water entering the apartment, [...] but there is still no drainage.  [...] Still the water can withstand a rainy winter and get into the apartment[ibid., paras. 30-38].
119. The court's expert emphasized that the planning of the drainage required the construction of slopes in the yard, deep in the ground below the drainage layer on which the grass is laid. In the development plan on which the contractor relied, there is no reference to slopes; If it is possible to learn anything from the partial data in the plan, then it indicates incorrect planning, with a height difference of only 3 centimeters [p. 8, 1-14].
120. The absence of drainage slopes in the yard cannot be attributed to the laying of the lawn: the slopes are not of the grass surface, which should rather be level and straight; The slopes are below the layer of base materials (fine gravel) on which the grass is laid. If slopes had been made at the site to create a drainage infrastructure, they would not have been harmed only by the laying of synthetic grass and the accompanying actions, even if they included the removal of part of the horticultural land that the contractor provided to the defendants in handing over the apartment and replacing it with a layer of grass base materials.  Zach rejected the thesis proposed by the contractor – a thesis that was not based on anything other than a mere hypothesis that had no evidentiary basis – that the lawn installer had dug for the purpose of laying it, compacted the soil and damaged the drainage slopes.  The court's expert explained that there is no possibility of this; The laying of the synthetic grass required treatment of a layer that did not exceed 20 cm in depth and did not deal with the depth at which the drainage infrastructure should be located [pp. 9, 24 to 10, 23].
121. I fully adopt the court's expert rulings on this issue as well. The testimonies of the contractor's witnesses did not change them.  In his main testimony, Shogel recounted his hypothesis, which he attributed to his professional experience, that the source of the dampness problems in the apartment was the installation of the lawn; By placing it, according to him, the defendants damaged the drainage slopes and covered the seepage pit.  In doing so, they created the damage that was observed in the apartment and the appearances of dampness in it [paragraph 10 of theP/3].
122. During Shogel's testimony before me, it was made clear that he could not stand behind this statement and validate it. He did not know how to explain the deficiency in the opinion of the contractor's expert, who did not refer to the laying of the grass as the cause of the dampness problem in the apartment [pp. 15, 18 to 16, 8].  Shogel himself may not be considered an authoritative expert on the subject; As evidence, he only gave an affidavit – not an opinion.  In response to the court's question, Shogel admitted that he lacked personal knowledge of the apartment and relied entirely on the documentation that was presented to him [pp. 12, 36-38; see also pp. 14, 24-26].  This puts in the right light his pretension to know that the source of the problem in the apartment is the laying of the synthetic grass [p. 12, 26-32].  When it was presented to Shogel that the contractor, who was called upon to carry out repeated repairs to the apartment, did not point out to the defendants the lawn as the source of the dampness problems, he was left unanswered: "I said from the beginning, during the customer service period I didn't accompany it so I don't know how to tell you[p. 17, paras. 24-34].  Everything that knows has become unknowing.
123. Kor sought to divert the discussion from his failures in planning the drainage to laying the lawn, and blamed the root of the evil on him. In the affidavit, he stated that the residents of the garden apartments in the project are not allowed to cover the top layer with synthetic grass that has not received approval from the project's management; The defendants laid grass in the yard without obtaining permission and there is a high probability that as a result the drainage infrastructure was damaged [paragraph 9 of theP/5].  I noted the negative impression left by Kor's testimony.  In cross-examination, he confirmed that it was possible to lay synthetic grass in the yard, taking care not to damage the drainage plan and the slopes that are part of it [pp. 37, 13-17].  Kor did not deal with the testimony of an expert in court that the drainage infrastructure and the slopes included in them are very deep in relation to the synthetic grass and the drainage layer that the installer places underneath, so that laying grass does not endanger the slopes, if they exist.
124. There is not a shred of evidence – contrary to the mere hypothesis, that the lawn installer did not perform the work according to the standard or while damaging the drainage infrastructure. Kor did not visit the apartment after it was handed over to the defendants and did not inspect the work of the synthetic grass layer, in connection with the design of the drainage system and the slopes.  He didn't see the grass that had been installed there.  His testimony about him was entirely hearsay [pp. 37, 20-23; pp. 38, 30-38; p. 39, 7; p. 43, 18-24, 32, 37-38].  Photographs from the contractor's expert opinion were presented to the audience; He confirmed that according to them, the synthetic grass was placed so that it did not cover the seepage pit [pp. 40, 14-25].
125. Hoffman confirmed that in the thick documentation that the contractor produced during his attempt to provide a solution to the problems of dampness in the apartment, during the defendants' residence in it, there is no reference to synthetic grass as a cause of water penetration into the apartment [pp. 23, 36-39]. When dealing with the dampness defects in the apartment, the contractor did not see the grass as the cause of the problem [pp. 24, 29-31].  As mentioned, the contractor's expert also did not see the grass as a cause of dampness.
126. In light of this, the contractor's argument that the defendants' laying of synthetic grass in the yard had any contribution to the dampness problems from which the apartment suffers, is rejected. Moreover, the claim was raised with delay, at the stage of submitting the affidavits, without mentioning the contractor's statement of defense and the contractor's expert's opinion.  Objection was expressed in this regard to the expansion of the front of the dispute, and it should be accepted [p. 9, paras. 19-23].

The repair work needed to address the dampness problems

127. The plaintiffs and the defendants did not refer questions to the court's expert [p. 25, paras. 3-6]. Only the contractor did so, but he was unable to undermine the determinations of the court's expert in the slightest: the same with regard to locating the real cause of the dampness problems in the apartment, with regard to the disqualification of synthetic grass as having an impact on these problems, and the same with regard to the repair required in order to provide a solution to the deficiency in the drainage of the yard – in planning on the one hand and execution on the other.
128. Zach detailed the components of the repair needed to solve the dampness problems, pricing each section of the work separately [Appendix to Costs inM/1]. He argued that the necessary treatment as part of the repair included replacing all the flooring in the bathrooms; Even if the cause of the dampness was the lack of drainage and lack of sealing as he determined, while water penetrated the apartment from the yard, the flooring in the bathrooms was exposed to water that had accumulated underneath it for several years in a way that required its replacement.  Appearances of moisture at the entrance to the apartment are evidence that there is water under the flooring layer throughout its entire area, while also causing damage to the flooring in the bathrooms [pp. 20, 1-7].
129. The court's expert held that the likelihood that the bathroom flooring was not exposed to moisture from the layer on which it rests is low [pp. 19, 24-26]. According to him, "There is no doubt that the same flooring in the bathroom and the same flooring in the living room are connected to each other by the layer of sesame or sand on which they are placed, [...] This layer drains water and is shared by the living room and the bathrooms and the whole apartment, if there was water in the living room and it rose and spoiled the paint in the living room I have no doubt that they were also under the bathrooms, it is the same sesame" [p. 18, paras. 23-39; p. 19, paras. 13-20].
130. This is a determination that is at the core of Zach's expertise, while linking it to his findings: the lack of a drainage infrastructure that was properly planned and executed on the one hand, and repeated and severe dampness manifestations inside the apartment on the other, with capillary seepage of water into the walls. The court's expert emphasized that if there is water in the living room, which rises from the flooring infrastructure and is detected by moisture in the walls, then the same applies to the state of the flooring infrastructure in the bathrooms; The flooring infrastructure is connected throughout the entire area of the apartment [p. 19, s. 30].
131. The repair in the apartment must be carried out in one stroke, according to the recommendations of an expert in the court, and with a strict approach aimed at once and for all the dampness defects with which it was delivered to the defendants; These are deficiencies that the contractor has not been able to deal with so far, despite repeated attempts. As will be clarified below, the contractor should be allowed to carry out all the necessary repair work, but this is under the close supervision of a court expert and in accordance with his instructions.  In this way, it will be possible to create an optimal correlation between the course of the work and its components and the reality that will be discovered in the field, while exposing the foundations along the exterior walls of the apartment and dismantling a sample of flooring tiles.  The court's expert will be instructed to take a conservative approach; In any matter that is in doubt as to whether it needs to be dealt with and replaced, or not, the repair and replacement will be carried out.
132. As part of the work that will be carried out to correct the dampness problem, a solution will also be provided for general defects in the apartment. The court's expert listed these deficiencies in his opinion and estimated their correction at NIS 6,000 and VAT.  This is a negligible cost compared to the cost involved in treating the problem of dampness; It is not for nothing that the parties completely refrained from addressing the issue of general defects during the investigations.  The plaintiff confirmed that if it were not for the dampness problems in the apartment, a claim would not have been filed due to the general defects [pp. 43, s. 36 to p. 44, s. 1].

The contractor's right of repair

133. The contractor's right to repair defects and defects in the apartment was anchored in the purchase contract entered into between him and the defendants [see sections 1(g)-1(h) and 7(h)(3) of Appendix 1 of theP/4]. In contrast to the contractor's right, the landlord is obligated to notify him of defects in it and to allow the contractor to repair them.  The law, as expressed in the Sale Law (Apartments), also recognizes the contractor's right to repair what needs to be repaired in the apartment after its construction is completed.  Section 4B The Sale (Apartments) Law provides as follows:

(a) If a fundamental non-conformity or non-conformity that can be corrected is discovered, the buyer or sub-buyer must give the seller a proper opportunity to amend it, and the seller must amend it within a reasonable time.