Shiner: You had time to bring in another tenant in your place and you didn't do that, I just published it for you and you didn't give permission...
You are in the apartment by virtue of an agreement you signed for me... And you don't have permission from me to exit in the middle of a contract without providing another tenant under similar conditions... I did agree to help you and advertise for you... Find an alternative tenant. 10 days ago I found a tenant and was asked to leave within 3 days and you did not do so and the tenant found another apartment. I suggest you advertise the apartment in any way, including brokerage... And until then, as far as I'm concerned, you are not exempt from the contract and are obligated to pay the payments required of me and all the authorities..."
- It appears that Vitaly's claims to notice that he left the apartment in January were not proven: there is no evidence in the correspondence of such a notice; the witness Artyom testified that he does not remember whether he was in the January conversation between Vitaly and Scheiner, and this is in stark contrast to what he claims in his affidavit – a contradiction that weakens his testimony and significantly reduces its evidentiary weight; The correspondence that Vitaly attached explicitly indicates that even if there was a conversation between the parties in January 2022, it does not appear that Shiner understood that Vitaly was planning to leave the apartment at a date close to the end of the second lease period and on exactly what date; Even when there was an opportunity to do so, when Schiner found an alternative tenant himself (instead of Vitaly), even if at short notice, Vitaly remained in the apartment.
- There are real doubts as to the alleged conversation in January, but from the totality of the evidence I am not convinced that a notice of leaving the apartment was given in January as claimed by Vitaly, but at most an informative conversation regarding Vitaly's financial situation as a result of the loss of his job. At one point, Shiner even offered VitalY. another apartment he owned, in which the rent was lower, in order to help Vitaly. Shiner also posted an ad in order to find an alternative tenant in Vitaly's place in order to help him. In this regard, I did not find fault with Shiner's conduct, but rather the opposite. The impression that arises from the evidence is clear: Shiner acted in good faith in accordance with section 39 of the Contracts Law.
- I hold that Vitaly's claims of advance notice as early as January have not been proven and I have not been persuaded that Vitaly gave advance notice as early as January. I determine as a finding of fact that such notice was not given by him at the alleged date.
- However, Vitaly's above-quoted statement of March 2, 2022 is a clear statement that has reference. In the circumstances, I determine that this notice should be considered advance notice within the meaning of clause 12.2(b) of the Agreement.
00Is the repayment of checks for the months of May and June 2022 by Shiner lawful?
- The evidence indicates that in the continuation of the correspondence in Appendix A to Vitaly's affidavit, on April 4, 2022, Shiner asks Vital Y to make sure that the rent check for April is not returned, asks Wheatley to deposit the difference and adds, "I can't do that, I also pay rent." On April 6, 2022, Shiner wrote to Wheatley: "Vitaly, I see and understand that you leave me no choice but to cut off the electricity and water in the apartment and do not pay bills, I am currently writing a registered letter to all the authorities asking you to leave the apartment today!!" and on April 10, 2026, he continues: "Morning Light, I don't understand you, today the water and electricity will be cut off and you will bear all the expenses" and on the morning of April 11, 2026: "When are you leaving the apartment?" On the evening of that day, Vitaly replies: "We talked about the fact that on the 25th of the month I am leaving an apartment, tomorrow I am going to the municipality to pay municipal taxes" and Shiner replies: "No problem, but I want this month's money, now I don't want to run after you after you leave, I am also looking for another tenant...".
- It is clear from this that Shiner agreed to vacate the apartment on April 25, 2022, but I do not believe that this agreement constitutes a waiver of Shiner's other rights in accordance with the agreement (and this is also consistent with the provision of clause 14.3 of the agreement – see below). There is no dispute from the correspondence that at the beginning of March, Vitaly announced his desire to leave the apartment shortly after the end of the second lease period, and this was discussed explicitly between the parties, even though in this notice he announced an immediate eviction and that Scheiner was strongly opposed.
- In any event, in these circumstances, it appears that in any event, Shiner is not entitled to the rent for the month of June 2022 when I determined that notice of early eviction was given at the beginning of March 2022, in accordance with clause 12.2(b) of the agreement, and therefore Vitaly must bear the rent payments for the next three months: March, April and May, but only for those I determine that there is no justification for obligating Vitaly, in these circumstances, to pay the rent for the month of June 2022, and this is all the more so when it is not clear from what date exactly Shiner himself lived in the apartment in dispute.
- As for the rent for the month of May , I determined that Vitaly's notice of his desire to leave the apartment was given to Shiner at the beginning of March, at which time Shiner was entitled to payment of rent for three months and May between that, before the agreement, and this is what I determine.
Even if Shiner asked that Vitaly leave the apartment immediately, I am of the opinion that the totality of the circumstances indicates that the remarks were made for the purpose of promoting the interests of the parties with the aim of minimizing damages, but without relinquishing his rights, which Shiner reiterated several times throughout the correspondence. I determine that Vitaly acted in accordance with section 12.2(b) and announced his intention to help on March 2, 2022, and therefore he must pay Shiner the rent for the month of May in the amount of NIS 3,000.
- The significance of this determination is that the note, whose maturity date is May 1, 2022, was submitted for repayment by Shiner lawfully. This is in contrast to the additional note in the amount of NIS 3,000 that was given in respect of the rent separately from June – in its case I determine that it was submitted for execution illegally.
Was the realization of the security check by Shiner due to damages and alleged debts that Vitaly had accumulated towards him lawful?
- In his affidavit – paragraph 6 of the affidavit – Shiner claimed that "after a tenant left the apartment on his own, leaving destruction behind, and rent payments were not paid, all that remained was to open a writ of execution file for two checks for NIS 3,000 (due in May and June 2022) and a security check for NIS 20,000."
- It therefore follows that, according to Shiner, he submitted the security check for realization for two reasons: one – due to damages that Vitaly left in the apartment, and the second – due to sums that he remained obligated to pay: various accounts, rent or others (including the fine stipulated in the agreement).
- Clause 12.1 of the Agreement states that the provisions of the Rental and Loan Law, 5731-1971 (hereinafter: the "Rent Law") "shall not apply to the engagement of the parties pursuant to this contract". Indeed, as a rule, the language of a contract entered into between parties must be respected, but the principle of freedom of contract is not absolute, and it is subject to the cogent provisions of law (which should not be stipulated).
- Section 25D(2) of the Tenancy Law, which is titled 'Prohibition of Stipulation', states that in residential leases:
"The provisions of sections 6, 8 to 10, 15, 21(b) and (c), 23 to 25e, 25h(a)(1), (b) and (c) and 25t to 25C shall not be stipulated except for the benefit of the tenant."
- I do not believe that a clause in the agreement that stipulates that the Rent Law will not apply to the engagement between the parties in a sweeping manner can withstand the circumstances. As far as the sections listed in section 25(2) are concerned , then the provision is certainly withdrawn from the law and null and void.
- Provisions regarding the realization of a guarantee, i.e., the security check that Vitaly deposited in Shiner's hands, are set out in section 25J of the Tenancy Law – which, as stated, should not be stipulated in accordance with the provision of section 25D(2) of this Law – which states that a "guarantee" is "a guarantee for the purpose of securing the tenant's obligations deriving from the residential lease contract". A security check given as part of a lease agreement is intended to ensure the fulfillment of the tenant's obligations and should not be used except where it has been proven that the obligations for which it was given were breached, and to the extent of the breach that was actually proven.
As for the fine of NIS 7,500 as stipulated in clause 12.2(b) of the agreement
- Clause 12.2(b) of the agreement stipulates that the tenant is obligated to find an alternative tenant who will come in his shoes if he wishes to terminate the lease agreement before the date set therein, otherwise he will be liable for a fine of NIS 7,500.
- In this regard, I find that taking into account Wheatley's arguments in paragraph 14 of his affidavit (quoted above), Wheatley erred in thinking that the responsibility for finding a replacement tenant rests on Shiner's shoulders, and this is not the case. The language of the agreement is very clear in this regard, and it seems that in real time efforts were made on the part of Vitaly to find an alternative tenant, since he claimed that Artyom assisted him in this. In addition, it was claimed by two parties that Shiner himself made attempts to advertise the apartment in order to find an alternative tenant, even though this was not his obligation under the agreement, in a proper manner and in the spirit of the duty of good faith in section 39 of the Contracts Law.
- This indicates that both parties acted as expected of them in the circumstances. Notwithstanding this, and in light of the clear language of the agreement, I determine that the responsibility for finding an alternative tenant rested on Vitaly's shoulders, and since he was unable to locate a suitable tenant (despite attempts and I do not doubt the claim that such attempts were made), he owed Shiner the amount of agreed compensation in the sum of NIS 7,500 as explicitly and clearly stipulated in the agreement.
- Here is also the place to mention the provision of clause 14.3 of the agreement, which states that "any extension, discount, waiver or failure to take steps shall not be considered a waiver of any of the parties' rights as seen in this contract or under any law unless they are made in writing and signed by the parties." It cannot be said that Shiner waived his right to the agreed compensation set forth in clause 12.2(b), neither in his conduct nor in his assistance in finding an alternative tenant, nor in the months of advance notice prescribed in this section, and since the claim was not raised by Vitaly, I am satisfied with the aforesaid conclusion.
- I determine that Vitaly owes Shiner the sum of NIS 7,500 in accordance with clause 12.2(b) of the agreement.
As for the damages that Shiner claims Vitali left in the apartment
- Section 25J(c)(2) of the Rental Law states that a security check may be realized where "the tenant has not corrected defects that he is responsible for correcting...". As you may recall, Shiner claimed that Vitaly caused damage to the apartment. Insupport of this claim, Shiner attached an appraisal opinion that was conducted two years after Vitaly left the apartment, i.e., in 2024. This raises real doubt as to the causal connection between the alleged damages and Vitaly's use of the apartment.
- This doubt is compounded by the undisputed fact that in the interim period between Vitaly's departure from the apartment and the preparation of the appraiser's opinion, Ma Shiner himself lived in the property for a period of time. In accordance with the appraiser's opinion, the extent of the damage caused to the apartment was estimated at NIS 44,577.
- It therefore follows that when another, let alone the plaintiff himself, lived in the apartment during the said interim period and when the appraiser visited the apartment and prepared the appraiser's report for a period of about two years after Vitali left the apartment, there is a real doubt as to the existence of a causal connection between the damages detailed in the appraiser's opinion and Vitali's residence in the apartment. And what is this supposed to say?
- From the testimony of the appraiser in the evidentiary hearing (p. 12 of the transcript, lines 12-14 and 23-27, my emphases D.B.) it emerged as follows:
"A: I assessed damages I saw on the day I visited the apartment.