A table (page 168 of the defendant's affidavit) was attached to the second addendum, in which all the apartments for consideration to the apartment owners were detailed, in which it was specified that the sale area of the defendant's apartment would be 127 square meters and the area of a sun terrace/garden would be 90 square meters.
A summary of all of the above shows that from the second addendum we can learn two things - first, that the uncertainty regarding the impediments to attaching the garden has risen to a level and the parties were even required to find an alternative in the event that it would not be possible to attach the garden to the plaintiff's apartment. In addition, it was explicitly agreed that in any case the area of the garden would be reduced from the 128 mentioned in the first addendum to 90 in the second addendum.
- For the sake of completeness, with regard to the signing of the second addendum, I find it necessary to relate to and reject the plaintiff's argument and accordingly - since the apartment owners signed the second addendum after a building permit had already been granted - it is only that, contrary to the defendant's claims, the permit did not negate the possibility of attaching the garden, and moreover, the second addendum is capable of indicating the uncertainty - Since it is precisely the signing of the addendum after receiving the permit that strengthens the representation that was presented to the plaintiff, and accordingly even after the permit, it will be possible to make the linkage. I do not find this argument acceptable, since it is based on a factual claim and accordingly the signatures were made after the permit was received. The problem is that to the plaintiff's affidavit, the plaintiff herself attached the second addendum and its signatures (Appendix 6, on pages 93-95 of the affidavit appendices) and from these documents it appears that most of the apartment owners, including the plaintiff herself, signed the second addendum on January 18, 2018. I will also note that although the defendant's affidavit was accompanied by a second addendum with later signatures, however, taking into account that the plaintiff herself attached the addendum bearing signatures from January 18, 2018, i.e., she was the one who claimed that these were the dates of signing the addendum, I found it acceptable to accept the defendant's argument and accordingly to the affidavit signatures were mistakenly attached to the later addendum. It follows from the aforesaid that the plaintiff's factual claim as to the date on which the second addendum was signed, was rejected from the evidence presented by the plaintiff herself, and therefore, her claim that contradicts this factual finding (and which is based on the dates of signing later than the date of issuance of the permit) should be rejected, in the sense of "the horse fell and its rider fell".
- I am of the opinion that additional support for the existence of a policy that ultimately ruled out the possibility of attaching the garden to the plaintiff's apartment is found in the plan for the permit application. As to this plan and the precedent of the latter, I am of the opinion that from this plan we can learn - both that the defendant tried to submit a plan in which a larger garden area was attached to the plaintiff's apartment, and that due to the municipality's policy, this attempt was rejected. Thus, and as will be detailed, documentation of the aforesaid can be found in the fact that in the plan, as approved at the end of the day, there is no congruence between the table of areas - in which it is stated that the plaintiff's apartment has a garden of 135.8 square meters and the sketch - from which it is clear that the part facing the street of the garden constitutes a public area and not a private yard. As to this inconsistency, I found to accept the defendant's arguments that the registration in the Schedule of Areas originated in error and that with regard to the permit that was issued, priority should be given to the manner in which the matter is presented in the drawing. Moreover, I am of the opinion that the very fact of the registration in the table of areas is indicative of an earlier version of the plan, in which there was an attempt to attach such areas to the plaintiff's apartment - that is, it supports the defendant's claims that she tried to attach the areas but in light of the municipality's policy and refusal, she was forced to amend the plan.
Thus, I will begin by noting that at the beginning of the application plan for the building permit (Appendix 10 to the defendant's affidavits), there is a table of areas for Renanim apartments 2-4. In this table, with regard to apartment No. 1 on the ground floor (the plaintiff's apartment), it is stated thatthe antitrust area + safe room is 125.7 square meters and that the veranda/garden balcony is 135.8 square meters. However, later in this plan, graphic drawings will be made, including the development sketch for the ground floor.