Civil Case (B.Y.) 64078-07-21 Asher Sharvit v. Azorim Building (1965) Ltd. - part 6

00Gypsum lowers

1. 0The court's expert determined in his opinion that the lowering of the ceiling and the air conditioning system were carried out in accordance with the instructions of the planner of the air conditioning system without any harm to the efficiency of the air conditioning system.  He further ruled that in the absence of an air conditioning expert opinion regarding the alleged damage to the efficiency of the air conditioning system and in view of the position of the opposing party; He is unable to give his opinion regarding the alleged harm to the efficiency of the air conditioning system.  The expert determined that in practice, two pipes are placed above the door of the safe room used for the air conditioning system, and that the ventilation system complies with the instructions of the Home Front Command without any hazard.
2. The plaintiffs claim in their summaries that the defendant acted contrary to the updated sale plan by not lowering plaster in the foyer of the apartment and not lowering the ceiling in the safe room.  According to them, the court's expert determination ignored the fact that all the reductions appear in the updated sale plan that was given to the expert and also in the parties' opinions.  According to the plaintiffs, they should be compensated in the sum of ILS 21,000 plus VAT, or alternatively in the sum of ILS 6,200 without VAT, as determined by the expert on behalf of the plaintiffs (paragraph 17 of the plaintiffs' summaries).
3. I did not find a deviation from the expert's determination and awarding compensation to the plaintiffs.  First, as emerged from the court's expert's interrogation, he saw the current sale plan, which was presented to him in the framework of the documents that were given to him.  It is true that this is a plan that was not signed by the parties and therefore he saw it as a work plan, but he reviewed it before giving his opinion (ibid., at pp.  3, paras.  28-31).  The expert confirmed that the entrance was lowered with a 20 cm strip, that the entrance hall was lowered, and that what was not done was the installation of cornices (pp.  4, 32, 5, 9 and 23).  As the expert testified, the plaintiff added a step to cover the pipes and the box, and the cost of the plaintiff's addition is ILS 1,000 (the cost of the defendant's contractor) (pp.  4, 32, 38; pp.  5, 18-21 and 33).  Thus, the expert's determination is based on the current sale plan, his examination in the field and his professional experience, and accordingly I did not find it necessary to deviate from it and award additional compensation, except for the addition made by the plaintiff, in accordance with the cost determined by the expert in the sum of ILS 1,000.

Incompatibility of Air Conditioning Plan

1. The plaintiffs claim that the failure to lower the safe room caused the air conditioning openings to change.  According to them, the expert erred in determining that in the absence of an air conditioning expert's opinion, he is unable to give his opinion regarding the alleged damage to the efficiency of the air conditioning system in contravention of the plans; The air conditioning plans are part of the apartment's plans and the expert received them (paragraph 18 of the plaintiffs' summaries).
2. First, the air conditioning plan on which the plaintiffs relied was not presented to the expert prior to his interrogation, despite my decision of December 5, 2022, that the parties must present the expert with all the relevant documents.  The plaintiffs did not present reasonable justice for this omission.  The plaintiffs also did not send the expert questions for clarification regarding these allegedly missing documents, and this is sufficient to fulfill their obligation.  Therefore, they cannot claim that neither expert nor did he review the relevant documents, which they chose not to present to him.  In any event, the expert testified that the location of the air conditioning openings is suitable for the sale plan (ibid., at p.  13, para.  33).  Similarly, the defendant's representative, Deri, who served as the contractor for the project, testified that the downgrades were carried out in accordance with the plans and that the supervision and consultants were approved for this (transcript of the hearing dated February 19, 2025, at pp.  45, 26-27 and 46, 2).  His testimony, which was not concealed, is supported by the expert's testimony.
3. Therefore, I did not find that the plaintiffs proved that there was a lack of compatibility with the merger plans, and in any event they did not prove the cost claimed by them.  Accordingly, I do not find the defendant to be obligated to pay compensation for this component.

Niche in the service room

1. According to the plaintiffs, the width of the niche that was built is smaller than the sales plans and therefore they cannot place a washing machine and dryer side by side and they should be compensated in the amount estimated by them in the sum of ILS 15,000 (paragraph 19 of the plaintiffs' summaries).  In his opinion, the court's expert determined that the width of the niche was correct.  The width of the niche in the utility room after local expansion work is within 124 cm.  According to the sales plan, the width of the service area is 122 cm.  Although the work plan mentions a size with a width of 125 cm, the plan notes state that "the size does not include coatings such as plaster and ceramics." Accordingly, the actual measurements, after the cladding has been performed, may be smaller than the size indicated in the plan.
2. The court's expert also noted this determination in the framework of his cross-examination (transcript of the hearing of January 22, 2025, pp.  29, 30; p.  31, 38).  Accordingly, I have not found a deviation from the expert's determination, which was given on the basis of his experience, expertise and examination in the field, and I do not find that the defendant should be obligated to pay compensation for this component.

Flooring Tiles

1. The expert located a number of damaged tiles or with abnormal local scratches in several places (in the entrance hall, dining area, living room, and master bedroom).  The expert determined that a local artist repair should be carried out while applying a dedicated filler and performing a fine polish to achieve a uniform look.  In the course of his cross-examination, too, the expert noted this determination (ibid., at p.  24, paras.  31-32).
2. According to the plaintiffs, they are entitled to a new sale and not a "renewed" sale, and therefore they should be compensated for replacing the flooring at least for the "public part" in the amount of ILS 32,500 for 65 square meters, plus the cost of supervision and tax appeal (paragraph 20 of the plaintiffs' summaries).
3. According to Section 4B(a) of the Sale Law (Apartments), the seller of an apartment is obligated to correct a discrepancy in the apartment that can be repaired, and the buyer must give him a proper opportunity to do so within a reasonable time.  The term "repair" in this context is broad and includes any action aimed at removing the non-conformity, including re-execution of a defective work, replacement of a defective item, or completion of work (Eyal Zamir, Sale Law (Apartments) (2002), p.  601).  Neither party has an absolute right to dictate the manner of repair, and the court must consider factors such as the cost of each of the remedies, the extent to which each method will remove the incompatibility, and the aesthetic damage caused by a partial repair.  In our case, I did not see a deviation from the professional determination of the court's expert who found no need to replace the flooring, but rather to carry out local repairs in relation to the individual tiles in which defects were found, and I adopt his determination.

Blinds

1. The expert determined that according to the technical specifications, the window shutters will be electric shading shutters, such as the existing ones.  These shutters do not provide complete darkness, but only shading.  At the same time, the expert determined that there is an abnormal light gap in the shading shutters, and in order to eliminate it and ensure maximum shading, the shading shutters must be adjusted.  The court's expert noted this determination in the course of his investigation (ibid., at p.  26, paras.  22-28).
2. According to the plaintiffs, this is a defect and they should be compensated for the cost of replacing all the shutters, which according to them is ILS 40,000, or a decrease in value due to non-performance.
3. Even with regard to this component, I did not see any deviation from the professional determination of the court's expert, which was not contradicted.  The need to replace all the blinds was not proven, and accordingly I did not find that additional compensation should be required for this component.

Acoustic hazard due to noise from the leaky pipes

1. The plaintiffs claimed "significant psychological discomfort due to hearing the noise of sewage from lowering the water in the toilet in upper apartments, from the receptor found inside the apartment" (paragraph 22 of the plaintiffs' summaries).  The plaintiffs did not petition for compensation for the impairment, but for compensation for mental anguish.  In this context, the court's expert determined that the control box appears in accordance with the provisions of the plan inside the apartment, in a place hidden from view.  The expert also determined that the control box connects the kitchen's drainage pipes to the vertical receptor pipes.  The expert reiterated these determinations in the course of his cross-examination (ibid., at pp.  16, paras.  21-23 and at p.  18, paras.  12-27).
2. As for the claim of psychological discomfort, the court's expert clarified that he did not hear any unusual noise during his visit.  If it is an unusual noise, it must be proven by an appropriate opinion.  In her absence, he cannot determine compensation.
3. In the absence of a proven defect, I did not find a way to award compensation.  As for the anguish of the soul, also in relation to this component, it will be discussed later.

Thermal insulation that is not in accordance with the plan

1. The court's expert determined in his opinion that during his visit, no visual findings were found attesting to a failure in the thermal insulation system.  After conducting an examination of the casing wall section in the northern bedroom and examining the wall layers as they were actually performed, the expert found that there was no deviation in the resistance factor from the requirements of SI 1045 as of the determining date.  However, the expert found that there was a deviation in execution from the design of the project's thermal consultant (in accordance with the project's thermal consultant's design, it was required to carry out a 7 cm thick plaster block with improved thermal resistance values instead of a 4 cm concrete block as was actually done, and therefore in practice only 30% improvement was made in relation to the standard, and not 65% as planned for improvement in accordance with the requirements of SI 1045).

The expert estimated the cost of the repair at ILS 10,000.  The expert noted these determinations in the course of his interrogation (ibid., at p.  34, para.  2).

1. According to the plaintiffs, they should also be compensated for the non-pecuniary damage caused to them as a result of the impossibility of using the room during the winter months, as well as for the decrease in value caused to the apartment, since "it is reasonable to assume that the same insulation was carried out throughout the apartment" (paragraph 23 of the plaintiffs' summaries).  However, even the expert on behalf of the plaintiffs does not refer to the thermal insulation in the entire apartment, but only to the northwest room.
2. I did not find a deviation from the expert's determination with respect to this component.  In this context, I have given my opinion that the plaintiffs' expert also does not make findings in relation to the isolation, but rather refers to what was said to him by the plaintiff, who relates only to this specific room while determining that "appropriate isolation must be checked and carried out and payment for depreciation and reasonable loss of use" when the cost was set at ILS 10,200, a cost similar to that determined by the court's expert.  Thus, the expert's determination, which was made on the basis of an examination he conducted and on the basis of his professional experience, is reasonable and I did not find it to deviate from it.

Depreciation

1. The same applies to the alleged depreciation.  The court's expert determined in his opinion that there was no depreciation, and that this was included in the compensation amounts it determined for the repair of each defect component.  I did not find that this determination was contradicted, or that evidence or reasons were presented that could deviate from the expert's determination.

Interim summary regarding the deficiencies

1. In the aforesaid summary, I found that the defendant must pay the plaintiff for the defects as follows:

1. The sum of ILS 28,800 according to the estimate of the work required to cancel the defects as stated in the court's expert opinion (p. 28 of the opinion).
2. The sum of ILS 2,500 for a faulty slope in the shower stall.

• The sum of ILS 1,000 for cast lowering.

1. The sum of ILS 4,500 for engineering supervision.

These sums, plus a lawful tax appeal.

1. The values of the opinion must be linked according to the Construction Inputs Index from the date of the issuance of the opinion (February 18, 2024) until the date of the judgment.

1. In the statement of defense, the defendant claimed the right to amend.  This argument was abandoned in the framework of its summaries and it did not dispute the amount determined by the expert (paragraph 2 of the defendant's summaries).  Accordingly, the defendant must pay the aforementioned sums.  In addition, I did not find that the defendant should be charged with additional compensation for contractor work on behalf of the plaintiffs, in view of the plaintiff's conduct, as described below.

Associating the apartment with "Motza Illit"

1. There is no dispute that the plaintiff's apartment is currently associated with Motza Illit (transcript of the hearing dated February 19, 2025, at p.  26, s.  38; testimony of Faraji at p.  17, s.  17).  There is also no dispute that the plaintiffs did not seek to cancel the contract due to a defect in its conclusion, and their argument focuses on the level of breach of the contractual obligation.  The plaintiffs' argument is that the defendant knowingly misled the plaintiffs by selling them the apartment when she knew that it was not of elite origin and did not inform the plaintiffs of this.
2. I will preface by saying that I did not find this argument to be true.
3. The sale agreement, which was signed on June 7, 2016, defined the land as "plots 30, 31, 32, 33, 34 in Block 30317, located in the "Arza" complex in Motza Illit.  The zoning plan was defined as Outline Plan No. Mi/876 and the project was defined as "the "Arza - Motza Illit" project in the "Arza" complex in Motza Illit, which is planned to be built by the company....".
4. Clause 2.2 of the sale agreement states that: "The buyer undertakes to examine, with a reasonable examination, before signing the agreement, the land, its location and surroundings, the city building plans that apply to it, the description of the building and the property as it appears in the specifications and the plans attached thereto, the condition of the building and the property at the time of the signing of this agreement, as well as any other factor that may influence his decision to purchase the property at the company's offices in the city building plans according to the provisions of which the property was built."
5. It was the plaintiff who conducted the negotiations for the purchase of the apartment with the defendant (transcript of the hearing dated February 19, 2025, p.  29, para.  20).  The plaintiff testified that he usually does not sign agreements before checking and verifying their correctness, but in the case at hand "I could not think for a moment that the settlement was not on the blue line that the blue line crossed the line of our project and that it was not...  It belongs to him.  I checked everything, I took it, I believed it was a point that no one thought, no lawyer who represented anyone, this project did not think that it should be examined, that you are being deceived and sold to you a project in a locality that is not in any locality and does not belong to anything" (ibid., 27-32).  However, an examination of the documents that were before the parties at the time of drafting the agreement leads to the conclusion that the defendant did not misrepresent, since the documents show that the project was indeed defined as being located in Motza Illit:

1. City Building Plan - Outline Plan No. M/876 was called the "Arza Motza Illit Complex". Under the subheading "Place of the Plan" it is written that "the 'Arza' compound in Motza Illit within the boundaries of the Mateh Yehuda Regional Council" (emphasis added).
2. The Lease Contract - In the lease contract, the "Lot" was defined as follows: "The Lot": The plot described in the attached diagram and which is an integral part of this contract, and whose details are: Location: Origin of Illit, the area is approximately 20,163 square meters...". The Registration and Settlement Department of the Israel Land Administration confirmed in its letter dated September 5, 2011 that Block 30317, Plots 31, 33, and 34 is located in Motza Illit.

• The Development Agreement - In the development agreement of March 2013 signed with the Mateh Yehuda Regional Council and the Mateh Yehuda Local Planning and Building Committee, the developer declared that he is the registered owner and holder of the land located in the "Arza Complex" "in the settlement of Motza Illit, within the boundaries of the Council".

1. The building permit - The building permit dated August 21, 2013 also states that the local authority is the Mateh Yehuda Regional Council and the building address: "Pack Mishkenot Motza".

The plaintiff was confronted with these documents during his interrogation, and the plaintiff admitted that he did not examine the documents and that he was not interested in them (ibid., at p.  30, 35; p.  31, 5-6 and 10, 12-13 and 29).