Civil Case (Jerusalem) 5734-11-21 Omer Bitar v. Hani Dweck

1. We are dealing with a claim for dissolution of a partnership in real estate andfor the defendant to pay a balance fee to the plaintiff in the amount of ILS 170,000.

The parties' arguments

1. The plaintiff claimed that he and the defendant were cousins who on July 31, 1996, jointly purchased land known as Block 30607, Plot 123, Beit Hanina, Jerusalem.  The parties built a residential building on the land and divided the possession of the apartments between them.  The plaintiff claimed that at the relevant times he lived abroad, and that the person who handled his affairs in Israel was his father.  He relied on the defendant, in view of the family closeness between the parties, to make fair use of the land.
2. The plaintiff claimed that he had discovered that the defendant had taken upon himself and is making use of large areas of the land in relation to those allocated to the plaintiff.  Thus, it was argued that the area in the defendant's possession in the building, parking lots and yards is larger.  The plaintiff claimed that he now lives with his family on the land and that the defendant's extensive uses of the land cause him and his family a nuisance and violate their privacy.
3. The plaintiff petitioned that the court order the dissolution of the partnership in the land, in accordance with the proposed division at the appraiser's farm on his behalf - Muhammad Kimari, while obliging the defendant to pay a balance fee.
4. The defendant argued that the lawsuit should be dismissed in limine because it was filed in bad faith and in an abuse of court proceedings.  It was further argued that the claim was time-barred and alternatively was filed with considerable delay.  The plaintiff is prevented from filing the claim in this case in view of the land division agreement signed by the parties on November 22, 1998, an agreement that regulated, inter alia, the use of the common areas.  The defendant argued that in accordance with clause 9 of the partition agreement, the parties undertook to transfer any dispute regarding the agreement to an arbitrator, unless this is impossible, in which case the court will decide the disputes.  In view of the above, the defendant argued that a stay of proceedings should be ordered under section 5 of the Arbitration Law, 5728-1968.
5. The defendant claimed that according to the agreement, the parties divided the land and undertook that the division they had agreed upon was final and irrevocable.  The division to which the plaintiff petitions in the lawsuit undermines the parties' agreements under the division agreement, and therefore it is liable to be rejected.  In any event, there is no logic in the requested division that allocates 67 square meters more to the plaintiff than to the defendant, in addition to the payment of absurd balance fees.

Expert Opinion

1. The plaintiff, as stated, attached to his claim the opinion of the appraiser Muhammad Kimri.
2. The expert Kimri visited the land on December 23, 2020 and estimated that the value of the built square meter is ILS 10,000 and the value of all the rights is ILS 7,800,000.  The expert Kimri determined that the value of the plaintiff's rights in the land, apartments and yards in his possession is ILS 3,730,000, while the value of the defendant's rights in the areas in his possession is ILS 4,070,000.  Therefore, the expert determined that the difference between the value of the rights is ILS 340,000, and the plaintiff is entitled to half of the sum - ILS 170,000 as payment of balance fees.  The expert Kimari clarified that the amount of the balance payments was determined after the units and yards were assigned in accordance with the plaintiff's demand.
3. The expert attached to his opinion a topographic map in which he marks in green the units and the area of Yard 2 allocated to the plaintiff in the land, and in red the units and the area of Yard 1 allocated to the defendant.  On the same map, the common areas used by both sides were marked in blue.  The plaintiff petitioned, as aforesaid, to order a division in accordance with the said map, while obligated to pay a balance fee.
4. The defendant attached to his evidence the opinion of the appraiser Arafat Kiwan.
5. Appraiser Kiwan determined that the market value of all the housing units in the building is ILS 7,888,836, with the value of the defendant's rights at ILS 3,933,884 and the value of the plaintiff's rights at ILS 3,954,952.  The difference between the value of the rights is ILS 21,000 in favor of the plaintiff, and the defendant is entitled to receive half of the said amount as a balance payment.  The expert added that the division of the yards in accordance with the plaintiff's appraiser's opinion, is contrary to the law, is not applicable and violates the defendant's proprietary rights, because it leaves the defendant without the possibility of parking in the plot.
6. In view of the discrepancies between the parties' opinions, I appointed appraiser Muhammad Abu Raya as an expert on my behalf.
7. The court's appraiser determined that the value of a built square meter is ILS 11,000.  The expert assessed the value of the rights in accordance with the division agreement between the parties and determined that the value of the plaintiff's share is ILS 3,527,370 and the value of the defendant's rights is ILS 3,664,540.  In view of the aforesaid, the difference between the values is ILS 137,170 and the plaintiff is entitled to half of the amount - ILS 68,585 as balance fees.
8. The expert made an additional calculation that included the value of the units and the yards together, according to a distribution proposal on his behalf, and determined that the value of the plaintiff's rights in the units, including Yard B, is ILS 3,857,370 and the value of the defendant's rights in the units, including Yard A, is ILS 3,950,540.  The difference between the values is ILS 93,170, and accordingly the plaintiff is entitled to half of the amount as a balance payment, i.e., ILS 46,585.  The expert further determined that the obligation to arrange the attachments of Yard A and Yard D - not to be attached to a specific unit - is on the defendant.  However, it was determined that the cost of the arrangement in the sum of ILS 50,000 applies to both parties equally and will be deducted from the balance fees.

The parties' evidence

1. On behalf of the plaintiff, an affidavit of the main witness was submitted signed by him.
2. The plaintiff attached a graphological opinion with respect to the signing of the division agreement for which the defendant claimed in his defense.  The defendant objected to the submission of the said opinion.  In my decision of June 27, 2023, I permitted the submission of the opinion, but clarified that this does not permit the expansion of the front with respect to a false claim that did not arise in the pleadings, and not in the framework of a reply, and that the use of the opinion would be possible only with regard to the sweeping denial of the agreement.
3. On behalf of the defendant, an affidavit of the main witness was submitted signed by him.
4. In the absence of a request by either party, the experts were not summoned to testify.
5. On 12 January 2025, cross-examinations and oral summaries were heard.

Discussion and Decision

1. The law of the claim to be accepted in part - there is room to obligate the defendant to pay the balance fee, but the claim for the division of the yards must be rejected.
2. It should be clarified that the parties do not disagree regarding the joint purchase of the land and the division of the apartments in the house in agreement for exclusive use.  The dispute between them is regarding the division of the areas of the courtyards in the condominium - whether they should be left as joint property, inter alia, according to the division agreement claimed by the defendant, or whether the partnership in them should be dissolved and a division of use should be determined.
3. In accordance with the precedent, the court's expert opinion has more weight, given that he is an objective expert (see Civil Appeal 61/84 Yosef Biazi v.  Avraham Levy 42(1) 446; Civil Appeal (Nazareth District) 272/09 Hachsharat HaYishuv Insurance Company in Tax Appeal v.  Khatib Samir (June 28, 2011)).  The rule is also that the court will adopt the findings of an expert on its behalf unless there is a clear reason not to do so (see Civil Appeal 558/96 Shikun Ovdim Company in Tax Appeal v.  Rosenthal IsrSC 52(4) 563; Civil Appeal 2099/08 Ashkelon Municipality v.  5737 Investments and Holdings in Tax Appeal (October 28, 2010), Civil Case (Haifa District) 426/02 Lakrit in Tax Appeal v.  Dekel HaCarmel Consulting Engineers in Tax Appeal (February 14, 2006); Civil Case (Haifa District) 1586/00 Daphne Langford v.  A.G.  Tom in a tax appeal (12.12.05)).
4. The parties did not ask to summon the court expert, did not send clarification questions, and therefore I have no choice but to accept his professional opinion.
5. In his summaries, the plaintiff wishes to adopt the appraiser's opinion in section 16, which includes a proposal for the division of the yards prepared by the appraiser.  The defendant wishes to adopt clause 15 of the opinion - calculation in accordance with the division agreement claimed by the defendant, in the framework of which all the yards remained as common property.
6. The dispute, therefore, is whether there is room to order the division of the yards in the house or to determine a division of use.  In light of the evidence and the law, the answer to this question is in the negative.
7. First, on the balance of probabilities, it must be determined that the existence of the partition agreement, Appendix 4 to the defendant's affidavit, has been proven, in light of a body of evidence that supports this factual conclusion.  This agreement, which binds the parties, stipulates that the courtyards are shared.
8. Thus, it has been proven that the division according to the agreement is the division that has been practiced in the house for many years, since the construction.  It is also a matter of dividing the apartments for a unique use, but also about the fact that the courtyards were and still are common property.
9. This division existed when the plaintiff's father took care of the assets for him until his death in 2002; This division also existed when the plaintiff visited the house from time to time while working abroad since the beginning of the construction; This division also existed when the plaintiff's family returned to live in the house in 2004; This division also existed when the plaintiff returned to live in the house in the years 2010-2011; This division also exists and is followed by the parties today;
10. The plaintiff did not object to the actual division of the apartments according to the agreement, did not object to the construction, and agreed to the situation that has existed in the property for years.  There is no claim or demand in the proceeding relating to the division of the apartments in the house, which is in accordance with the provisions of the agreement, and constitutes, in fact, recognition of its validity.
11. It should be emphasized that the plaintiff also does not propose any other mechanism of consent that existed between the parties, including neither an agreement nor the circumstances of consent.  All that he claims is about oral consent, but this without any detail - when? How? By whom? Especially when, according to his claim, he was not in Israel at all on the relevant dates (see paragraphs 4, 11 and 12 of his affidavit) - the plaintiff's testimony does not contain an orderly factual version that can be adopted on the question of how the apartments were divided in the customary manner, which further strengthens the validity of the agreement.
12. Thus, a distribution agreement signed by the plaintiff's father was presented on his behalf.  Indeed, the plaintiff has claims regarding the authenticity of the signature, which we will refer to below.  However, it was proven that the plaintiff's father was authorized on his behalf in all matters relating to the property until his death in 2002 - the plaintiff testifies to this in his cross-examination; The plaintiff confirms his father's signature on the application for a building permit; The plaintiff confirms his father's signing of an agreement with the contractor for the construction of the skeleton; Shrem's opinion on behalf of the plaintiff is attached to a series of documents indicating that the plaintiff's father acted for him with respect to the land; The aforesaid is certainly not appropriate for a claim, it is the only one that came up on behalf of the plaintiff in light of the pleadings, denying the existence of an agreement or its legality.
13. The plaintiff's denial of his father's actions and his obligations according to them is belated, and in light of the proven conduct, it is not acceptable - it has been proven that the plaintiff's father was authorized on his behalf for any material matter related to the property, including consent to the division of the apartments.  As stated above, the plaintiff's lack of a factual version regarding the circumstances of an agreement to divide the apartments also strengthens the said conclusion.
14. Thus, the plaintiff's own active involvement in all the construction proceedings was proven - according to his testimony, he approved the construction and the engagements on his behalf, especially when, according to him, he did not give his father a power of attorney, but rather approved his concrete actions.  He was involved in concrete construction details.  He visited the property over the years and during construction.  Despite the aforesaid, he does not offer any other factual version as aforesaid as to how the distribution of the apartments was carried out.
15. Thus, it was proven that the agreement was also consistent with the other documents signed by the plaintiff's father on his behalf, including the application for a permit and the skeleton agreement (Appendix 3 to the defendant's affidavit).
16. Thus, despite the plaintiff's knowledge of the actual distribution, no claim was filed by him for nearly 20 years since the father's death.  Nor did he send any demand.  There is no likelihood of this conduct on the part of the plaintiff insofar as he did not know of the partition agreement or of an agreement regarding the division between the defendant and his father on his behalf.  The plaintiff does not give any explanation as to why he agreed to accept the actual distribution of the apartments if it was not done with his consent.
17. Thus, the plaintiff's testimony indicates that there are at least two witnesses who could have testified in the proceeding in support of his version that there was no agreement on a division according to the agreement.  This is true with respect to the plaintiff's mother, especially when she has been living in the house over the years.  The same applies to Engineer Nazir Ansari, whose involvement was not mentioned at all in the pleadings or in the plaintiff's affidavit and came up only in the course of his cross-examination.
18. With regard to the dispute that arose between the parties in the summaries regarding the question of which of them should have testified about the plaintiff's mother, the defendant's position must be accepted - first, the testimony is important not only with regard to the agreement but also with regard to the division and the actual agreement, and in this context the burden is on the plaintiff to explain his conduct over the years.  Second, the defendant is right that this is a testimony that is under the control of the plaintiff and it is expected that he will be the one to testify to it, insofar as her testimony is of such significant importance.  Third, in light of the plaintiff's testimony that his mother would not have approved of the division, it is clear that he was obligated to dothe same in order to support his version.
19. Thus, the defendant's argument must be accepted, as it has already been expressly determined in the proceeding, that a claim of forgery is an extension of the façade.  Despite the claim in the statement of defense regarding the existence of the agreement, the plaintiff did not file a reply, which is required for the purpose of raising a claim of forgery, as opposed to denying the existence of the agreement itself.  Nor was it requested to amend the statement of claim, at least for the sake of caution, from the moment the claim of the existence of the agreement was raised.  This is especially true from the moment it can be determined, in light of the totality of the evidence, that the plaintiff knew of the existence of the agreement.
20. In light of the above, the defendant is correct that there is no relevance to the opinion of Shrem on behalf of the plaintiff, which, according to his testimony, deals with the question of the "forgery" of the signature.  It should be noted that the list of witnesses also did not include an intention to submit a graphologist's opinion, which was submitted only at a later stage, even though the claim regarding the agreement was certainly already known at that time.  The submission of the opinion was approved only with respect to the denial of the agreement and not with regard to the claim of forgery, an expansion of a front that the defendant had always opposed and should not be approved.
21. In any event, the totality of the documents indicates a change in the signatures of the parties over the years and in various documents.  Thus there is a variation in the defendant's signature.  Thus, there is a difference in the father's signature (even on documents that the plaintiff claims were signed by the father).  The lack of identity in the signatures cannot be a decisive consideration in our case.
22. Thus, the defendant's claim regarding evidentiary damage caused by the plaintiff in his conduct should be accepted - filing the claim after the father's death, years later, in circumstances in which the father acted substantially on behalf of the plaintiff as stated above, acts to the plaintiff's obligation.
23. Thus, the defendant's testimony was reliable in my opinion.  This is the testimony of a person who was a party to the engagement directly, his testimony is the only one "from a real time", and he is the only witness in this context, inter alia, in light of the plaintiff's delay in taking the proceeding.
24. Thus, the appearance of the document itself strengthens its credibility - the fundamental change related to the replacement of the apartments allocated in the house and the deletion related to the limitation of the rental option.  If it were a document that is not real, what would be easier than preparing a document that corresponds to the actual division and without changes or deletions?! It is precisely in the document that was presented, which includes deletions and changes that require explanation, that the fact that it is an authentic document should be strengthened.  In any event, the defendant gave a satisfactory explanation of the conduct and the manner of conduct - his testimony was reliable, authentic and did not contradict anything, and as stated, the only factual testimony from personal knowledge.
25. In this context, the defendant's argument that the fastening marks in the original document give rise to any doubt should be rejected - beyond the fact that an explanation was given by the defendant that the document had other unrelated documents fastened, there is no reason to base factual findings on the basis of "tightening holes".  In this context, too, if they wanted to "invent" a document, they would not have had to "invent" unnecessary fasteners.
26. In the balance of probabilities as aforesaid, it must be determined that the distribution agreement is authentic and binding.
27. Second, even if we were to deal with the question of division of use (even though the remedy sought in the lawsuit is "dissolution of a partnership in the land"), there is no room in any case to divide the use of the courtyards since the claim of the existence of a nuisance or disturbance has not been proven.  In this context, no documentation was attached that could support the claim, and in general, neither photograph nor any other documentation.  Apart from the plaintiff's testimony, which in this context included limited and general statements in his affidavit (see paragraph 14), no supporting testimony was submitted by a family member or any other witness regarding the alleged interference.
28. It was proven that no lawsuit was filed for nuisance and no legal claim or demand letter, as the plaintiff admitted in his interrogation.
29. In such circumstances, no "nuisance" need or justice has been proven to dissolve the partnership in the yards or divide the use thereof.
30. On the other hand, it was proven that the dissolution of the partnership in the courtyards or the division of use, certainly in the manner requested by the plaintiff in the statement of claim, would substantially and significantly infringe the defendant's rights with respect to common parts, including the service room, the entrance to the stairwell, and the possibility of parking in the courtyard.
31. Third, there is no place to order the dissolution of a partnership under the Movable Property Law, which means a physical division of real estate.  The plaintiff also explicitly petitioned in the statement of claim for the dissolution of the partnership in the land (see the definition of "type of claim" as well as section 2 explicitly with respect to the remedies requested).  Accordingly, the law that should be applicable to our case is the Land Law, 5729-1969.
32. There is no dispute that it is a "house" as defined in section 77A of the Real Estate Law.  The provisions of Chapter F1 of the Real Estate Law apply to the house.  In accordance with Section 77B of the Real Estate Law, the provisions of Section 56 of the Law also apply .  In this proceeding, as the plaintiff clarified in the summaries, it is requested to divide the yards in the house.  Once it has been determined that the division agreement between the parties is valid, these yards are "common property", both in light of its explicit definition in section 77A of the Real Estate Law and in light of the agreement of the parties.  Accordingly, and when the provisions of Chapter F1 of the Law are subject to division, the provisions of Chapter E of the Law do not apply to the common property in the house.
33. It should be emphasized that in the framework of the present proceeding, the plaintiff petitioned for the dissolution of the partnership in the courtyards only.  Accordingly, in light of the law and the case law, the plaintiff's legal arguments in the summaries are irrelevant in the absence of the applicability of chapter E of the law regarding a claim for the division of "common property" in the house only (whether by virtue of the provisions of the law or by virtue of the division agreement), which is the claim before me.
34. It should also be noted that the ruling brought by the plaintiff in the summaries of the reply does not support his claims , and even vice versa.
35. Thus, in the judgment in a civil case (Shalom J.M.) 65594-11-15 A.K.  Yaffe Nof in Tax Appeal et al.  v.  Peer et al .  (May 16, 2018) - It was held that it is not possible to dissolve a partnership in joint property in the absence of the application of chapter E to this property, including joint property (see also my judgment in a civil case (Shalom J.M.) 22137-04-22 Sasson v.  Hariri et al .  (November 30, 2022).  Admittedly, rulings deal with houses that are registered in part 6.  However, the matter also applies in accordance with the circumstances of the present proceeding , when the claim is for the dissolution of the partnership in the common property only, as aforesaid.
36. Thus, the judgment in Civil Case (Shalom Krayot) 28405-02-13 Rudi Yatziv v.  Eli Marom (06.09.15) does not deal at all with the structure to which the provisions of chapter F 1 apply, as in our case.  The district case law cited in the same proceeding (Civil Appeal (Haifa) 52403-09-11 Strolovich v.  Lazarovich (February 6, 2012)) actually states, contrary to the plaintiff's claims, and applies section 56 of the law, as the legislature commands, to a house that is not registered, and in particular with respect to a claim for the division of the common property only.  In any event, in the same proceeding, the question of the existence of an agreement for a multi-year division was discussed, unlike the proceeding at hand, in which the multi-year agreement referred to the courtyards as common and divided only the apartments.
37. Thus, the judgment in Civil Case (Shalom Tel Aviv) 152849/09 Leviathan (Barkower) et al.  v.  Avrahmar (May 16, 2023) deals with the question of whether it is possible to dissolve a partnership in a house included in chapter F1 of the Law.  This is not the question required for our case, and in any case in this proceeding a partnership was not requested and it is not possible to dissolve a partnership by registering a condominium in the absence of registration of the land and in any case in the absence of registration of the rights of any of the parties.  The judgment does not deal with the question of whether it is possible to dissolve a partnership in the common property only in a house in respect of which there is an agreement for division that has been in practice for many years, for our purposes, whether we accept the existence of the agreement as determined or in light of the implied agreement in light of the many years of conduct.
38. Fourth, there is a substantial and fundamental difficulty with the dissolution of a partnership in "real estate" as requested in the statement of claim, when these are parties who are not registered at all in the claims table with the settlement clerk, all that was presented was a power of attorney without a purchase agreement, reporting or tax approvals.  It also appears that both parties did not file a claim with the settlement officer, nor did they give any notice of an agreement.  At most, an agreement could have been considered for the division of use, but as stated, the plaintiff failed to prove that there was justice for this.
39. It follows, therefore, that the validity of the distribution agreement must be recognized and the appraiser's determinations in paragraph 15 of the opinion should be accepted accordingly.
40. In light of the aforesaid, and in light of the defendant's position in his summaries that he wishes to adopt the appraiser's determination for "distribution" according to the agreement, there is room to accept the claim for payment of balance fees in the sum of ILS 68,585 in accordance with the appraiser's opinion.
41. It should be clarified that the defendant did not raise any argument in his summaries against the obligation to pay the balance fees, including not the claim of limitation, which arose only with respect to the plaintiff's claims regarding the agreement.  His arguments in the summaries with respect to the court's expert opinion also dealt only with the alternative of division in paragraph 16 of the opinion.  In any event, the agreement does not prevent or exclude a claim for payment of balance fees.
42. For the sake of completeness - even if at the end of the day an argument is accepted that there is room to order the division of use, in any case there is room to adopt the division determined by the court appraiser, which provides a relevant and correct response to the planning and factual situation and not the division requested by the plaintiff, which causes disproportionate harm to the defendant as aforesaid.
43. For the avoidance of doubt, as long as the planning issue has not been settled, there is no room in such a case to determine the exclusive use of parts D and E , and it must be determined that these will remain common property, inter alia, in light of the common parts found in Part E, including a utility room.  Another update is the attachment of part of Area B at the entrance to the stairwell, which should be subtracted and included in the part that will remain as common property.
44. In the event of such a division, it should be determined that it will also be possible to park vehicles in Area C as long as there is no mutual obstruction.
45. If such a division is made, then there will also be room to carry out the economic balances in accordance with the balance fees that were obligated in this judgment and the balance fees that must be paid in accordance with the said division according to the appraiser's determination (see paragraphs 16 and 17.8 of the opinion).

Conclusion

1. In light of all of the above, the claim is partially accepted.
2. I order the defendant to pay the plaintiff the sum of 68,585 for the payment of balance fees together with ILS interest from July 4, 2023 (the determining date) until the actual date of payment.
3. The claim to dissolve the partnership or divide the use of the courtyards is dismissed.
4. Once the claim is partially accepted, there is room to obligate the defendant to pay the plaintiff's expenses in respect of the proceeding.  I would like to emphasize that even after the expert opinion was submitted, no suggestion or claim was raised by the defendant that he was willing or willing to pay the balance fees determined according to the alternative confirming the distribution agreement claimed by him.
5. The conduct of the proceeding must be taken into account to the fullest, including a pre-hearing and evidence.  The need for expert opinions, including on behalf of the court, and the determination that the plaintiff is entitled to payment of balance fees must be taken into account.
6. In view of the aforesaid, I order the defendant to pay the plaintiff the sum of ILS 8,100 (including VAT) for reimbursement of attorney's fees expenses, the sum of ILS 4,476 for the reimbursement of the claim fee together with ILS interest from today until the date of actual payment.
7. In addition, the defendant will refund the plaintiff the cost of the appraiser on his behalf and his share of the payment of the court appraiser's fees according to a lawful invoice and together with ILS interest from the date of the invoice until the actual date of payment.
8. Since the claim of forgery is an extension of the façade, and as stated, the opinion on behalf of the plaintiff did not assist in the proceeding, there is no reason to order the refund of the cost of this opinion.
9. The right to appeal by law.

Given today, January 13, 2025, in the absence of the parties.