A second alternative, based on the equivalent area of the entire upgrade (i.e., calculating the compensation on the basis of the full consideration paid for the entire upgrade and not on the basis of the relative portion of the garden, or if the court believes that the upgrade notice should not be relied upon). According to this alternative, the scope of the expected upgrade is equivalent to 55.5 square meters built (33 square meters built and the expected floor area is 22.5 square meters according to a coefficient of 0.25). Subtracting 13 square meters from the garden (the difference between 90 square meters and 77 square meters) is equivalent to 3.25 square meters of built-up, which constitutes about 5.86% of the entire scope of the upgrade. Accordingly, the maximum compensation derived from this rate out of the total consideration (ILS 950, 000) is only approximately ILS 55, 670.
A third alternative, presented for the sake of caution only, according to which the defendant assumes that the relative portion of the garden out of the consideration paid is equal to its full value estimated in the plaintiff's appraisal, i.e., ILS 783, 832.5. It was argued that even under this unreasonable assumption, which attributes to the plaintiff a payment of only approximately ILS 166, 000 for an addition of 33 square meters built, the maximum compensation is limited to the relative reduction of 14.4%. This reduction from the full value of the garden puts the maximum amount of compensation at approximately ILS 113, 000 only.
- Moreover, it was argued that there is no reason to award the plaintiff any compensation for the alleged violation of her privacy. This is because, even if approval had been granted to attach a garden with an area of 90 square meters, the part of the garden facing French People's Street would not have been surrounded by a fence, in accordance with the municipality's guidelines and the explicit decision of 2014. According to the defendant, this impediment was known to the plaintiff at the time of entering into the agreement, and it did not prove an "invasion of privacy" that deviates from the normal condition of a ground floor apartment.
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- In conclusion, in light of all the aforesaid and detailed, the defendant argues that the plaintiff's claim should be dismissed.
Discussion and Decision;
- After examining the mutual arguments, reviewing all the writings and evidence that were submitted and heard before me, I am satisfied that the claim should be dismissed, and my reasons will be detailed below.
- I will begin by examining the municipality's policy regarding the attachment of courtyards to an apartment, such as the consideration apartment for the plaintiff. As a preliminary remark, I find it necessary to note that the parties referred to the policy that applied in the planning aspects, as the policy of the "municipality". As for this attitude, I will begin by noting that, due to the identity of the personas, in the local committee and in the municipality, there is sometimes confusion in the identification of the entity that is responsible for various issues. As for this, it appears that the person who publishes policy guidelines is usually the local committee and not the municipality. In addition, there is no dispute that the Licensing Authority, which is responsible for handling the issuance of permits, is also an arm of the local committee. In these circumstances, it is doubtful in my opinion whether it is correct to relate to the planning policy as "the policy of the municipality" and not as "the policy of the local committee", but since this is what the parties did, and in order not to be confused in the terms, I will also refer to the local committee and the municipality as "the municipality".
- I have chosen to begin the chapter of the decision with a discussion of the issue of the municipality's policy - on the dates relevant to the lawsuit and even on the date of the issuance of this judgment. This is since, as will be detailed and illustrated below, I am of the opinion that a decision on the question of what the policy was in real time is capable of constituting a significant interpretive layer when I seek to trace the nature of the engagement between the parties as well as its content, as well as with regard to the things that were said or exchanged in real time. Moreover, a decision on this issue has a direct impact on the question of whether an undertaking was indeed breached by the defendant or whether - to the extent that the defendant's argument is accepted and accordingly the obligation that is the subject of the hearing is an obligation to make an effort - and in any event, since the policy did not allow the garden to be attached to the size claimed, it did not breach the agreement. To this, it should be added that a decision on the question of what the municipality's policy is as of today, has implications in any case for the remedies that can be ruled on in this case. Thus, and to the extent that it is proven that the policy does not allow for the attachment of the yard today - it is clear that it is not possible to order enforcement that is not feasible, and therefore, in such a case, the remedy - to the extent that it is determined that there is room to rule - will focus on compensation.
- Before detailing the municipality's policy, I will note that from a factual point of view, there is no dispute that the plaintiff's garden apartment is a corner apartment (which has two air directions), located on the ground floor, and the part of the garden in dispute - i.e., the one that was not ultimately attached to the apartment - borders the apartment on one side, while its southwestern side is towards the front of the condominium and borders the French People's Boulevard. In other words, there is no dispute that this is a garden on the front facing the street.
As to the municipality's policy with regard to the attachment of garden areas in the front space or in the façade facing the street on the ground floor - similar to the garden that is the subject of the discussion, which borders as aforesaid on French People's Boulevard - the plaintiff claims that no policy has been proven that prevents the possibility of such linkage - in general and in particular on the dates relevant to the lawsuit, while the defendant claims that such a policy has been proven in the past and in the present.