Q: O-Key, Do you know how to estimate when these damages were caused?
A: Nope.
...
Q: Okay, I mean, there wasn't a test before, you didn't do a test.
A: This is the only time I've been there.
Q: Ok. In your opinion, did you rely on the fact that the damages were caused by the tenant? Or do you not know who?
A: That's what the plaintiff told me."
- Regarding Shiner's residence in the apartment, Mr. Shiner himself testified onpage 10 of the transcript, lines 29-33 as follows:
"Honorable Registrar: Thank you. Mr. Scheiner, since when have you been living in this apartment?
A: After a large number of months.
Honorable Registrar: Is that a lot of 3 months or 9 months?
A: No, much more, 8 9 months."
- Hence, during the interim period, Shiner lived in the apartment, and even that apparently after some time had passed since Vitaly left the apartment.
- In this regard, the Honorable Justice Keren Miller wrote in her book 'Experts in Civil Law' (2025), chapter 12, p. 249 as follows:
"With regard to property appraisals, it was ruled that a delay in preparing an appraisal opinion regarding the extent of the damage may be significant for the evidentiary value of the opinion, including the possibility that the delay will lead to the denial of the opinion's ability to serve as evidence of any weight to prove the extent of the damage. It was further determined that the question of how and to what extent the delay will affect the evidentiary value of the opinion varies from case to case according to its circumstances."
- See also the Supreme Court's ruling in Civil Appeal 4119/24 Lior Berko v. S.S. Shlomo Insurance Company in a tax appeal of October 6, 2024, where the Honorable Justice Yechiel Kasher held as follows:
"... A delay in preparing an appraiser's opinion regarding the extent of the damage may be significant for the evidentiary value of the opinion, including the possibility that the delay will lead to the negation of the appraiser's ability to serve as evidence of any weight regarding the extent of the damage..."
- From the aforesaid, it appears that there is substantial evidentiary importance in submitting an appraiser's opinion close to the date of the alleged damage. The appraiser's testimony leads to the conclusion that the opinion does not establish findings regarding the condition of the apartment at the time of its departure by Vitaly in light of the time that has passed. The appraisal opinion submitted by Scheiner was prepared about two years after the date of Vitaly's departure from the apartment, and this delay is in accordance with Scheiner's obligation.
- In the circumstances, I determine that the unreasonable delay in the preparation of the opinion, which took place about two years after the date of the eviction of the apartment, taking into account the statements quoted above regarding the importance of submitting an opinion immediately after the occurrence of the alleged tortious event, together with the fact that Shiner lived in the apartment after Vitaly's departure and before the preparation of the appraiser's opinion, severs the causal connection between the condition of the apartment at the time of Vitaly's departure and the alleged damages caused by him.
- I determine that the condition set forth in section 25J(c)(2) of the Tenancy Law (which states that a landlord is entitled to exercise a guarantee when the tenant has not corrected defects for which he is responsible for correcting) is not met. Therefore, I determine that Mr. Scheiner's attempt to repay the security check due to damages that he claims Vitali left in the apartment is an unlawful attempt.
- In a closed article, I will add that I have not found any reference to the photographs that were attached to Shiner's affidavit, even if I assume that the defects photographed in them were caused by Vitaly, when I have no evidence of the value of the damages shown in the photographs that were attached (since I have determined that the appraiser's opinion has no evidentiary value in our case).
As to the alleged debt in respect of rent for the months of January to April 2022 (inclusive)
- In this regard, section 25J(c)(1) of the Rent Law (which should also not be stipulated) states that a security check can be realized where "the tenant has not paid rent...". I determined above that Shiner was not entitled to pay rent for the month of June, but was entitled to pay the rent for the month of May.
- As for the months of January to April – an analysis of the evidence before me, including Appendix C to Vitaly's affidavit (bank account statements), the following findings emerge:
- On January 4, 2022, Vitaly paid a total of NIS 3,000 in a check from the same series of checks that were presented for payment for the months of May and June. I determine, as a finding of fact, that this is a check for rent for the month of January, as claimed by Vitaly, and that this check was paid by him, and this is in complete contradiction to Scheiner's claims that for this month Vitaly did not pay the monthly rent in accordance with the agreement.
- The correspondence that was attached to Vitaly's affidavit as Appendix B indicates that Shiner gave him the account details of "Adina and Yigal" and asked that Vitaly make a bank transfer to their account in exchange for checks for the rent they had forfeited. Appendix C shows that on February 7, 2022, a bank transfer in the amount of NIS 3,000 was made to "Adina and Yigal", and I determine as a factual finding that this sum constitutes the payment of the rent for the month of February.
- Also in Appendix C, it is clear that on March 2, 2022, a check in the amount of NIS 3,000 was deposited, which was not honored by the bank on March 3, 2022. I did not find any evidence of the payment of this check in any way, but that Wheatley claimed that he had also paid cash payments, and after that date I did not find in the correspondence between the parties that a debt for that month was mentioned, even though in April (I will detail immediately) another check for the rent was not honored, and Shiner turned to VitalY without mentioning any previous debt in respect of the rent for the month of March. However, and taking into account Scheiner's unsubstantiated claims that the security check was also deposited in respect of the rent debt for the months of January to April 2022, which I find to be untrue, I find preference for Vitaly's arguments in this context, which are situationally consistent with the evidence before me. In this regard, I will refer to the testimony of Vitaly on page 16, line 7: "For the second year we agreed with him that he would come to my apartment and I would pay him either cash, or make a bank transfer."
- It also appears from Appendix C that on April 3, 2022, an additional check in the amount of NIS 3,000 was deposited, which was not honored by the bank on April 4, 2022. There is documentation of the transfer of a sum of NIS 1,600 on April 4, 2022, and an additional sum of NIS 1,400 on April 10, 2022, from Wheatley to Shiner. In this regard, there is also correspondence in Appendix B regarding Shiner's demand for 'payment of the difference', after which the last sum was paid. Therefore, I determine that the rent for the month of April was also paid by Vitaly in full, as appears from the evidence.
- In light of all of the above, I have no choice but to reject Shiner's claim that the security check was deposited due to a debt that Vitaly accumulated due to non-payment of the rent for the months of January to April, as aforesaid, and I determine that the rent for these months was paid in full.
- I found it necessary to refer in this matter also to what was written in the minutes of the hearing on page 38, lines 28:
"Adv. Grady: The first claim is that the rent was not paid, the municipal taxes were not paid...