Family Appeal (Tel Aviv) 51161-10-24 Anonymous v. Anonymous

Judgment

Judge Einat Ravid, Presiding Judge:

Appeal against a judgment dated September 24, 2024 of the Family Court in Tel Aviv-Jaffa (the Honorable Judge Esther Zitnitzky Rakover, Claims after the Settlement of Litigation 66294-05-22) [Nevo] in which the court accepted the respondent's claim and ordered the appellant to pay proper usage fees in the amount of ILS 3,000 per month as of June 2022 and as long as the appellant lives in a 3.5-room apartment on XXX Street in Ramat Gan (hereinafter: The apartment).

Summary of the factual background

1. The deceased T.   (hereinafter: the deceased) passed away on August 14.2013.  The deceased married twice.  Initially, two children were born with Ms. R.  and this relation: the respondent and his sister.  Subsequently, the deceased married Mrs. Z.  (hereinafter: the appellant's mother), and from this relationship the deceased had three additional children, among them the appellant and her sister, who is a confidential person (hereinafter: the confidential).
2. The deceased and the appellant's mother purchased together an apartment on XXX Street in Ramat Gan (hereinafter: the apartment), which was registered in equal parts in the name of the deceased and the appellant's mother.
3. The deceased left a will dated October 5, 2010, in which he bequeathed his share of the apartment to the respondent and bequeathed the remainder of his estate to a daughter from his first marriage (hereinafter: the will).
4. If the appellant filed an objection to the execution of the will. On December 7.In 2015, a judgment was given by the Honorable Judge Shifra Glick (hereinafter: the Will Judgment), who rejected the objection and ruled that the will was valid and on December 15, 2015, a probate order was issued.
5. After an appeal was filed against the judgment of the will and a claim for maintenance from the estate was filed, on June 13.In 2017, the plaintiff, the appellant's mother and the confidential person, through the legal guardian, signed a settlement agreement for the disposal of the appeals and claims (hereinafter: the Settlement Agreement). The settlement agreement stipulated that if the appellant and the defendant were exempt from paying rent on half of the apartment owned by the respondent, "both for the past and for the future, as detailed below, and would not hear any argument in this regard." They were also given the right to live in an apartment (section), including the respondent's share, without consideration until the day of the death of the appellant's mother.  It was also held that after the death of the appellant's mother, the ward will have no claim to the right of a section.
6. On May 30.In 2022, the Respondent filed a claim against the Appellant, who is, as aforesaid, a half-sister of the Respondent, for the payment of proper usage fees due to her living together with her spouse and two children in the apartment, in which, as aforesaid, the Appellant's mother and the Ward, who is also the Respondent's half-sister, live. The claim for a ruling on usage fees is for seven years prior to the filing of the claim.

Summary of the Trial Judgment

7. The respondent claimed that the appellant had moved into the apartment with her family (her spouse and two children) without his permission or knowledge, and demanded a proper usage fee of ILS 3,000 per month for half of the apartment. The appellant claimed that she had moved into the apartment before the deceased's death in order to help her mother, when the deceased knew about it and did not object.  She also claimed a delay in filing the claim.
8. The appellant also argued that she should not have taken the respondent's consent to live in the apartment, because it is the right of the appellant's mother, who is her mother and owns half of the rights, to allow her to live in the apartment. This argument was rejected in the judgment.
9. In the settlement agreement, the right of residence was granted only to the appellant's mother and her ward, and the appellant was not mentioned in it at all. Precisely in light of the appellant's claim that at the time of the settlement agreement she was already living in the apartment with her spouse and two children, the fact that it was not written in the settlement agreement that she was also given permission to live in the apartment together with her family, shows that she was not given permission to continue living in the apartment.  The respondent even testified that he would not have agreed to give her the right to live if he had been asked about it in the settlement agreement.
10. The Ottoman Settlement [Old Version] 1916The court ruled that the appellant acted in bad faith and took advantage of the respondent's consent , which was given to the appellant's mother and her wardrobe to live in the apartment without paying rent. It was held thatthe appellant saved herself the payment of rent in the transit camp to the apartment.
11. 12-34-56-78 Chekhov v. State of Israel, P.D. 51 (2)The appellant's argument that if the appellant was in a serious medical condition is not tobe proved.  On the contrary, the appellant herself claimed that she moved into the residence while the deceased was still alive and when, according to her, the condition of the appellant's mother was perfectly fine, because the appellant's mother took care of the deceased.  The appellant's testimony and the documents presented by her to the court did not prove her claim regarding the difficult condition of the appellant's mother, and as evidence, the National Insurance Institute repeatedly rejected the appellant's mother's claim for assistance, and only in 2022 was a claim accepted.
12. The appellant also works two jobs and therefore has no time to take care of her mother.
13. The appellant's argument that the claim was filed with delay was rejected. However, Nruled that the payment of the usage fees will begin from the date of filing the claim, on May 30.2022.
14. The respondent attached to his claim an estimate by Mr. Y., a realtor who works in the area, who noted that from an examination he conducted the rental price range in the place where the apartment is located ranges from ILS 5,500 to ILS 6,500 per month. The appellant did not dispute the amount of the rent, which was claimed by the respondent, nor did she submit any evidence to indicate that the rent was lower than those claimed by the respondent and the assessment was determined to be reasonable.
15. Therefore, the appellant was obligated to pay ILS 3,000 per month as of June 2022 and as long as she continues to live in the apartment with her family. In addition, she was charged with legal expenses and attorney's fees in the amount of ILS 15,000 .

Summary of the Appellant's Arguments in the Appeal

16. The trial court erred in determining that the respondent suffered damage, since the respondent did not claim damage, and in accordance with the settlement agreement, the appellant's mother and her guardian had possessive rights in the entire apartment without consideration until the death of the appellant's mother. Therefore, the respondent is not entitled to receive usage or rent fees.
17. The respondent knew of her living in the apartment since at least 2015 and did not contact her with a demand to evict her or pay rent, which indicates explicit or implied consent to her residence. The respondent's declaration that he would not have allowed her to live in the apartment contradicts his knowledge and lack of action for years.
18. The certificate of the public servant, which determined that the appellant's mother was confidential, was inadmissible, and the appellant's request to investigate the person who gave the certificate was denied. In addition, the medical opinion was not received on behalf of the appellant and the court did not even appoint an expert on its behalf.
19. 00It was copied from Nevothat the respondent is abusing a proprietary right, since if the appellant needs help and the court's decision is contrary to the rule "it is beneficial and it is not lacking" and public policy. The appellant did not become rich from the move, but her personal and family situation deteriorated due to the dedicated care of her mother and sister.
20. 0For the purpose of determining the value of the rent, a document was obtained by a realtor in violation of the Real Estate Appraiser Law, 5761-2001 (hereinafter: the Real Estate Appraiser Law), which stipulates that a real estate appraisal will be conducted only by a real estate appraiser. The appellant objected to this evidence from the outset.
21. The appellant should have been exempted from the obligation to recover the claimed usage fees, in accordance with section 2 of the Unjust Enrichment Law, 5739-1979. This is because the respondent did not suffer any loss of pocket and the restitution is unjust in the circumstances of the case.
22. The respondent acted in bad faith, since he claimed that he had only recently discovered the appellant's residence, even though he had known about it for many years. His conduct, and his disregard of the appellant's sacrifice to the care of her mother and sister, contradicts the settlement agreement and public policy.
23. The court erred in the order in which the evidence was presented, in obtaining a certificate of a public servant without interrogating the person who gave the certificate, and in failing to obtain a medical opinion on behalf of the appellant or by appointing an expert on his behalf.

Summary of the Respondent's Arguments

24. Ownership in real estate is a cornerstone of basic rights, and the owner is entitled to do with the property as he wishes, including renting or lending it. The appellant tramples on this right and settles in the property without permission and for free, while attempting to create a senior and supreme right over the ownership. The appellant must remove her hand from the property or pay use/rent fees.
25. The appellant presents a false representation of poverty and conceals real data. The appellant receives a long-term care benefit in the amount of approximately ILS 7,440 per month for an Israeli caregiver, in addition to approximately ILS 1,500 as a Holocaust survivor, as well as an old-age pension, and in total she is entitled to receive between ILS 9,000 and ILS 11,000 per month. From this sum, the mother can pay her daughter for the help as a substitute for a foreign caregiver, and thus provide the appellant with a source of rent payment to the respondent.
26. The appellant is considered "privileged" and exempt from normal conduct, while people from the community pay rent or usage fees when they live in an asset that is not theirs. In addition, the argument that two caregivers are required is rejected as "not telling the truth, to say the least", since it has never been proven that the appellant's mother required personal nursing care.
27. The respondent notes that the appellant's mother, who is his stepmother, andthe appellant fought him fiercely in court and tried to dispossess the property right in the apartment within the framework of his deceased father's will. He was falsely accused, and his father was presented as dementia, all in order to deprive him of his right to the apartment.
28. The appellant's settlement in the apartment from 2013 without payment of rent is irrelevant to the dementia of her mother, who was recognized as a caregiver only partially in 2022, nine years after the settlement.
29. The appellant should have contacted the appellant at the time of the signing of the agreement from 2017 and settled this issue, since she did not do so, she has no right to live with her entire family in the apartment by virtue of the agreement.

Discussion and Decision

30. In the hearing on January 19, 2026, we brought the parties to an arrangement, but it turned out that due to the situation of the appellant's mother, it was not possible to implement the arrangement and therefore there was no choice but to issue a judgment.
31. After reviewing the judgment and the arguments of the parties, I find it necessary to recommend to my colleague that the appeal should be dismissed.
32. Most of the appeal is about factual determinations, and as is well known, the appellate court will not intervene in factual determinations, except in exceptional cases. Moreover, the judgment establishes reliable determinations that are not flattering to the appellant and even notes several times that the appellant acts in bad faith and deceit (see paragraphs 6.3 and 8.1 of the trial judgment).
33. Half of the apartment belongs to the respondent and half of the apartment belongs to the appellant's mother. Hence, the respondent and the appellant's mother are roommates. The status of roommates and their right to use is regulated in section 31(a)(1) of the Real Estate Law, 5729-1969.  There it was determined that the right of a real estate partner to make reasonable use of a common property (such as a residential apartment) without the consent of the other partners is conditional on two separate conditions: that the use be reasonable, and that no other interested partner will prevent such use.
34. The issue of reasonable use has been discussed in the literature and in court rulings. The judgment in Other Municipal Applications 458/82 Ada Willner v. Vera Golani, 42(1) 49 (January 27, 1988) interprets section 31(a)(1) of the Land Law, and states that in the absence of a demand for joint possession on the part of the other partners, a single joint venture should not be prevented from making reasonable use of a residential apartment, and it is sufficient that the using partner does not prevent the others from using it together when they so desire.  For more on this subject, see Yehoshua Weissman in his book, Laws of Property-Ownership and Partnership (1997), pp.  229-234; Hanoch Dagan in his book, Kinyan at a Crossroads, Ramot Publishing, 2005, pp.  321-322; Miguel Deutsch in his book, Kinyan, Volume 1, Bursi Publishing, 1997, p.  532; Moti Banyan, Real Estate Law, Principles and Laws, Institute for Law and Economic Research, Second Edition, 2004, p.  641, Civil Appeal (Tel Aviv District) 11823-09-15 Yaakov Lari v.  Ronen Davidi [Nevo] (June 4, 2018) and more.
35. A judgment dealing with roommates and the introduction of an additional tenant is the judgment of Other Municipality Applications 304/72 Menachem Bilar v. Moshe Bilar, IsrSC 27(1) 533 (1973). In that judgment, the apartment in question belonged to a couple in equal parts.  The claim was made by the father who had ceased to agree to continue living in the apartment for the couple's 28-year-old son, as he had agreed in the past.  In legal terms, the father revoked the permission he and the mother gave to the son, and therefore he must leave the apartment.  The son argued that the father was not entitled to revoke his right to live in the apartment on his own initiative, when the mother had equal rights in it and was in favor of his remaining in it.  The Honorable Justice Zvi Berenson writes (in the opinion of President Shimon Agranat and Justice Moshe Etzioni) in relation to the argument that according to section 31(a)(1) a son is permitted to remain in the apartment:

"And when one partner permits a third party to use the property, or any part thereof, against the will of the other partner, he is committing a sin against what is stated in the section in two things: First, the user of the land is not himself but someone else.  Second, by allowing use to a third party, it prevents the other partners from making such use at the same time.  It is forbidden to derive an equal derivative in this regard from the transfer of ownership or the execution of any other transaction in the land without the consent of the other partners that the law permits, since by such a transfer the right of the other partners is not impaired and nothing is detracted from it.  However, as stated, this is not the case in the case of permitting the use of the property, or part thereof, to another person, without the consent of the other partners.  A residence permit in an apartment shared by both spouses, by one of them and another person, also impairs the possession and use of the other spouse.  In this respect, the law of an adult son is no different from that of a stranger.  ...  Is such a situation conceivable? A person enters an apartment for free without any legal obligation to him, and after a while he no longer wants it.  Can such a person be forced to do so just because the other spouse says, 'I loved the man (or woman) and I don't want him to leave (or leave)?'"

36. In the case at hand, the introduction of an entire family (parents and two children) into the apartment by the partner is an unreasonable use of the property. For if it were to be depicted that the partner, the respondent, had wished to make "such" use of the apartment, i.e., to bring an additional family into the apartment "in his part", it is clear that he would not have been allowed to do so. Therefore, in these circumstances, this is an unreasonable use.
37. Moreover, there is unfairness in the actions of the appellant's mother who allows her daughter and her entire family to live in the apartment without taking into account at all the rights of the partner equal to her rights in the property, and when the partner agreed that she and the ward will continue to live until the day of the death of the appellant's mother in good old age and without payment for his share of the apartment.
38. As to the claim that the respondent agreed to the residence of the appellant and her family in the apartment, the respondent's consent was agreed upon and expressed in the settlement agreement signed with the appellant's mother, and nothing more. Once the settlement agreement has been signed, no agreement that is expressed in this agreement should be attributed to the respondent. Certainly when it was said that at that time the appellant was already living in the apartment.
39. It is also clear that it is not possible to present a private opinion on behalf of the appellant in the Family Court, and on the other hand, the appointment of an expert was not requested by the court. In these circumstances, the appellant has nothing to complain about except herself.
40. Moreover, even if the appellant is currently in need of long-term care assistance, there is no justification for the care to be done by an entire family living in the apartment. Insofar as the appellant wishes to take care of her mother and for this purpose to live with her in the apartment with her entire family, she must pay for the use that she and her family make of the respondent's share of the apartment.
41. With regard to the proper use fees, indeed, as a rule, an appraiser's opinion must be attached according to the law to prove proper use fees for real estate. However, as stated in Family Appeal (Center) 49135-04-26 M. v.  B.M.  [Nevo] (June 9, 2026), "We note that the case law states that it is not always necessary to submit an appraiser's opinion to prove the amount of the appropriate usage fees.  In some cases, the amount of the usage fee can be proven with other evidence, such as usage fees actually paid for the property or similar properties.  The court may award usage fees based on the estimate, but only when the plaintiff has proven his damages with "reasonable data" and there is a sufficient evidentiary basis, such as testimony regarding the payment of rent in a similar leased property, etc.  (see Civil Appeals Authority 4630/10 Mazal Cohen v.  Israel Lands Administration [Nevo] (2010); Civil Appeal (Tel Aviv District) 61943-02-17 Yosef Twili v.  Zion Avni [Nevo] (2018))." In this case, in view of the evidence brought before the court, which is the testimony of a realtor who is familiar with the property and the area, who even appeared for cross-examination, it is possible to approve the usage fees determined in the trial judgment.  Certainly when they were determined only from the date of filing the claim and not for all the years in which the appellant and her family lived in the apartment prior to the date of filing the claim.

Conclusion

42. The appeal was dismissed.
43. The appellant will pay the respondent expenses in the sum of ILS 25,000.
44. The guarantee that the appellant deposited for its fruits will be transferred to the respondent through his counsel at the expense of the expenses awarded.