Honorable Registrar: For which months was the rent not paid?
Adv. Grady: I claim that they were not paid, the rent was not paid from the beginning, from January onwards, no...
Honorable Registrar: January 22
Adv. Grady: 22 onwards. In other words, and its name, and we do not have it, we have no reference to what the defendant claimed that he supposedly paid. Other than that...
Honorable Registrar: The checks from January to March and not April were not presented for payment here.
Adv. Grady: 100% ma'am, since, since we, there is no dispute about the next months that were also not paid, so we don't want to claim everything at once, demanded 3 checks...
Honorable Registrar: So I will deposit April checks but I won't be depositing January February?
Adv. Grady: First of all, first of all
Honorable Registrar: Really?
Adv. Grady: I have the security check, as soon as the security check is deposited, we put all the checks that depend on it..."
I find that there is at least a hint of bad faith in these allegations in view of all of the above in this chapter.
As to the debts alleged in respect of various accounts to the various authorities
- Section 25J(c)(3) of the Rental Law allows for the realization of a guarantee if the tenant has not paid regular payments for which he is liable, such as municipal taxes, water and electricity.
- In this regard, apart from Shiner's oral claims that Vitaly remained obligated to make regular payments, no evidence was attached to support this: neither in the pleadings, nor in the appendices to the statement of claim or Shiner's affidavit, nor in the framework of the hearing, even though he was given an opportunity to present evidence to this effect in order to strengthen his claim.
- The burden of proving a debt for current payments is on the plaintiff, and since this has not been lifted, there is no reason to determine that Vitaly remains in debt for money. This is certainly in light of the fact that all the accounts remained in Shiner's name, as appears from the evidence material (and the reason for this is not relevant in his case, but rather the very fact that this is how the parties behaved), and therefore the information in this matter is under his control, and also in light of Vitaly's claim that the alleged debts were paid to Shiner in cash, and even though he did not bring any evidence to that effect, the burden of proving the amount of the debt is still on the plaintiff's shoulders under the presumption of 'the one who takes out the evidence from his friend'.
- Admittedly, Scheiner did notmeet the burden of proving the extent of the alleged debt in respect of ongoing charges that apply to Vitaly as the person who owned the apartment or its very existence, but on the other hand, it is impossible to ignore Vitaly's admission that he did not pay some of the current payments. These things have not gone unnoticed by me, but in the absence of a sufficient evidentiary basis that enables determining the scope of the debt, the court has no basis for awarding any amount in favor of Shiner. Therefore, I determine that this component has not been proven to the extent required for the purpose of realizing the guarantee.
- More than necessary, I will note that even the manner of realizing the guarantee must meet the conditions set forth in section 25J of the Tenancy Law, and in particular the provisions of sections 25J(d) and (e) (which also cannot be stipulated) which require the landlord to warn the tenant of his intention to exercise a guarantee given to him. I did not find that Shiner acted torealize the guarantee in accordance with these provisions of the law, while Shiner acted to realize it without giving lawful notice to the tenant, or at least no evidence of this was brought before me.
- In this regard, it should be noted that according to Vitaly, he paid Shiner a sum of NIS 3,400 in cash for various ongoing expenses close to the date of leaving the apartment. At first, Vitaly claimed that Artyom was a witness to the matter, later claimed that he knew about it and even claimed at a certain point that he was on the telephone line at the time of the transfer of the said sum. There is no basis for these claims. Artyom's testimony on this matter was also incoherent, and I will refer to page 35, lines 23-29, which contradicts paragraph 11 of his affidavit (in this regard, I will also refer to page 36, lines 2-5, from which it appears that Artyom's memory raises questions, and I will not add to that).
Shiner denies that he was given any sums in cash. In the circumstances, I determine that I do not have sufficient basis to establish findings regarding this claim. Therefore , I will not discuss the arguments of the parties regarding the said sum: if it was given for what was provided, how is it considered, whether it was sufficient to close the debt in respect of current payments and the other arguments raised by the parties in the evidentiary hearing in this matter.
- From all of the foregoing, it follows that Mr. Shiner had no right to make the security check repayable except for the fine set out in clause 12.2(b) of the agreement, in the sum of NIS 7,500 only. I reject Shiner's claims for additional debts for damages caused to the apartment, for rent or for current bills that were not paid in accordance with all of the above.
Conclusion