Small Claim (Jerusalem) 17968-06-25 Tal Grossi v. Barzani Properties & Building

A small claim for compensation for delay in delivering an apartment in accordance with the Sale Law (Apartments), 5733-1973 (hereinafter: the "Law").

1. On June 26, 2018, the plaintiff and his wife purchased an apartment from the defendant as part of the 'Buyer's Price' project. According to the sale agreement, the defendant was required to deliver the apartment "by January 31, 2021" (clause 5.1 of the sale agreement).  However, the delivery was delayed and the apartment was finally delivered only on July 12, 2021.  The plaintiff filed a claim for compensation for the delay, based on a calculation of 5.5 months of delay, rent in the amount of ILS 7, 100 per month, and a fine of 1.5 in accordance with section 5a(a( of the Sale (Apartments( Law, 5733-1973.  The amount of the claim, in accordance with the jurisdiction of this court, is ILS 38, 900.
2. According to the defendant, the delay stemmed from factors beyond its control, as detailed in clause 5.3 of the sale agreement. First, the "Ayalon Valley" company was almost a year late in handing over the lot to the defendant, and was also negligent in the essential development work to obtain Form 4.  Second, the COVID-19 pandemic caused significant delays in the project due to isolation, morbidity, and restrictions on the entry of workers.  The defendant emphasizes that the terms of the tender that it won stated in advance the existence of squatters on the land, and that the evacuation of the squatters and the works by "Emek Ayalon" were not under its control.  The defendant claims that it reflected all the information to the purchasers in full transparency and also sent update letters.  It was also claimed that the "Harel" local committee delayed the granting of occupancy permits until the completion of the development work of the "Ayalon Valley" in the public sector.
3. 00The defendant presented the agreement it signed with "Emek Ayalon" for the execution of public infrastructures in the project (Appendix C to the statement of defense), and attached a schedule of execution dates (Appendix D). This engagement was made in accordance with the ILA's demand and the terms of the tender to which it is committed.  It was claimed that the delivery of the lot to the defendant from Ayalon should have been on March 6, 2018, but Ayalon was delayed for nearly a year, and even in October 2018 (7 months after the scheduled delivery date( Ayalon did not complete the works.  It was argued, in the statement of defense and at the hearing, that Emek Ayalon confirmed that the delay in handing over the lot to the defendant was their fault, but such approval was not presented and no appropriate meeting summary was presented.  Photographs that the defendant attached in connection with the condition of the lot after the date on which it was supposed to be delivered, which show work that was also carried out in March 19 and November 20 (Appendices E and Z-H( and email correspondence with Ayalon (Appendix F), are not sufficient to indicate the connection between the delay in the delivery of the lot and the delay in the delivery of the apartment.  The photos show construction work at the same time, apparently, as well as development work.  In a correspondence dated October 7, 2018, Ayalon was asked what the timetable was for carrying out the evacuation work from the lot, and he replied, "If it is already being carried out on Friday, they are pressuring to complete it immediately within a few days." How many days? Who's pressing? What pressure from the defendant on Ayalon preceded this? The defendant did not present sufficient evidence to prove these claims, including data on the pressure exerted on the Ayalon Valley Company.

0It should be noted that the defendant did not request the addition of Ayalon as a third party in this case.

4. The defendant presented update notices that it sent to the purchasers (Appendix 13). In a letter dated 27.11.2018 It was written that the defendant had not yet received possession of the lot, and that the possession was supposed to be delivered "during the month of November".  It was reported that as a result, the delivery date would be postponed to April 30, 2021, on condition that the plot be delivered by November.  On February 23, 2021, it was announced that due to the coronavirus, the delivery date would be postponed to May 31, 2021.  On May 11, 2021, another letter was sent, according to which the occupancy approval processes are nearing completion, and delivery dates will be coordinated.
5. Photographs from August 2018 were presented in Appendix E (paragraph 6.12 of the statement of defense). It was argued that the Ayalon works had not been completed by that date, "so that Emek Ayalon could not have handed over possession on that date to the defendant" (ibid.).  Later (section 6.13( it was argued that, in accordance with the correspondence with Ayalon (Appendix F), even after 7 months have passed from the planned delivery date (March 6, 2018), Ayalon's work has not yet been completed.  The defendant refrains from mentioning the date of delivery of the lot, according to her.  In these circumstances, the delivery date set for April 30, 2021, in the update notice to buyers dated November 27, 2018, should not be accepted.  The defendant did not prove when the lot was delivered to her, and why the expected delay in handing over the apartments was of 3 months, and not, for example, 7 months, as she claimed.  Moreover, the defendant did not present work diaries or reports or opinions on its behalf to prove the causal connection between the delay in the delivery of the lot and the delay in the delivery of the apartments.
6. Beyond the necessity, it should be said that the defendant based its claims on clause 5.3 of the sale agreement, and in particular on clause 5.3.1. Taking into account the confirmation of the judgment in Civil Case (Jerusalem District( 68041-07-23 Avraham et al.    Psagot Ziv Investments and Development (1993( Ltd.  (8.1.2026), it is doubtful whether there is room for such stipulations on the cogent provisions of the Sale Law, even in its wording as it was before Amendment 9 to the Law and at the time of the signing of the sale agreement.  In any event, as stated above, the causal connection between the date of delivery of the apartment and the delay in the Ayalon works was not proven to me.
7. Copied from The Ottoman Settlement [Old Version] 1916The defendant presented the recommendations of the Ministry of Justice in connection with the coronavirus (Appendix to the statement of defense), according to which there is room to consider an 'extension' of 40 days in the delivery of apartments. According to the defendant's notice of February 23, 2021, the defendant announced a one-month delay in delivery (from April 30, 2021, the previous date, until May 31, 2021, the new date), due to the coronavirus.  This delay is acceptable and reasonable, in view of the well-known difficulties that existed at the time.

12-34-56-78 Chekhov v.  State of Israel, P.D.  51 (2)

8. It was further claimed that the plaintiff was 26 days late in payment, but the statement of defense was not attached to the 'report of the difference between the days of making the payments' which was specified as Appendix B to the statement of defense, and no other reference was submitted to this effect. The plaintiff claimed at the hearing that he did not remember such a delay, and in any event it would mean a deduction of ILS 9, 000 from the amount to which he was entitled according to the calculation, and even such an offset leaves his claim within the jurisdiction of this court.  Therefore, and in the absence of sufficient reference, the claim of offset is rejected.
9. In light of the aforesaid, and after examining the parties' arguments, it was found that out of a total delay of 5.5 months in handing over the apartment to the plaintiff, a period of one month should be reduced due to the effects of the Corona crisis. Therefore, this is a compensable delay of 4 and a half months.  The compensation was calculated by the plaintiff by multiplying the duration of the delay by a fine of ILS 7, 100 of the monthly rent of ILS 7, 100, in accordance with section 5a(a( of the Sale Law (Apartments), 5733-1973 prior to Amendment 9 to the Law.  The defendant did not dispute the amount of the rent (p.  2 of the minutes of the hearing, line 34).  Therefore, the compensation due to the plaintiff is in the sum of ILS 47, 925 (4.5 months *7, 100 ILS * 1.5( and in accordance with the jurisdiction of this court, the amount of compensation to be awarded is ILS 38, 900.

It should be clarified that even if the defendant's claim for a reduction of ILS 9, 000 due to late payment had been proven, the amount remaining to the plaintiff would have been ILS 38, 925, which still exceeds the amount of the claim that was filed within the limits of the jurisdiction of this court.

10. Therefore, the claim should be accepted in such a way that the defendant will pay the plaintiff damages in the sum of ILS 38, 900.

To this sum will be added a sum of ILS 389 in respect of court fees, and expenses in the sum of ILS 750.