However, apart from the filing of a statement of defense, these defendants (and all the defendants, with the exception of defendant 1), did not take any part of the proceeding, including this one, did not file affidavits of the main witness, did not appear for the hearings, and did not even submit summaries. In these circumstances, the proceeding was conducted only between the plaintiff and the defendant, and therefore, as a preamble to the latter, I will note that the starting point for the discussion is that any decision that will be made in the framework thereof will also apply to these defendants.
- The condominium was an old house, to which the provisions of TAMA 38 applied. The owners of the old apartments in the condominium sought to promote such a project by contracting with a developer - who would demolish the condominium and build a new condominium in its place, and in return he would receive the new apartments that would be added to the condominium. The apartment owners examined the possibility of entering into an agreement with a number of possible developers, including the defendant - with whom they ultimately chose to enter into an agreement.
- On May 28, 2015, a general TAMA agreement was signed between the defendant and the owners of the old apartments in the building, including the plaintiff. This agreement included a table of areas detailing the consideration apartments to which the owners of the old apartments will be entitled. There is no dispute that in this table, it was stated that the plaintiff's consideration apartment would be an apartment with an area of "130 square meters built + a garden of 90 square meters" on the ground floor.
I will note that the TAMA agreement included land registry documents, whose perusal shows that the original apartment that was registered in the plaintiff's name (subplot 9) was in an area of 48 square meters (page 80 of the defendant's affidavits, and also, see the plaintiff's attorney's consent on page 38, lines 14-19). It should also be noted that a table of areas (page 86 of the defendant's affidavit) was attached to the agreement in which it was recorded that the area of the plaintiff's apartment (mistakenly registered as Rachel Golden) was 97 square meters.
- There is no dispute that already in 2013, even before the TAMA agreement was signed between all the apartment owners and the defendant, the "first addendum" to the TAMA agreement was signed between the defendant and the plaintiff. I will note that according to the defendant, the signing of this addendum was preceded by a proposal that was addressed by the plaintiff to all the apartment owners, in the framework of which it suggested that they upgrade their apartments by adding areas (Appendix 2 to the defendant's affidavit) - the plaintiff denies sending such a notice.
In any case, there is no dispute that the plaintiff and the defendant agreed to upgrade the plaintiff's apartment, and therefore - even before the signing of the TAMA agreement - an addendum to the TAMA agreement was signed between them (which was attached as Appendix 5 on page 126 to the plaintiff's affidavits and Appendix 3 on page 138 to the defendant's affidavit). As part of this addendum, it was determined that the plaintiff would bear, in addition to all her other obligations under the agreement, the sum of ILS 950, 000. Sections 3 and 4 stipulate that the consideration includes VAT and that it will bear linkage differentials as specified. In clause 5 it was determined that there would be no change in the other provisions of the agreement, and in clauses 6-8 - which are relevant to our matter - it was determined that:
- The opening of an additional window in the safe room is subject to the approval of the Defense Advisor and the Home Front Command.
- Enlarge the garden subject to the approval of the municipality to 128 square meters as agreed."
"8. For the avoidance of doubt, the failure to receive the approvals to open the window and enlarge the apartment will not constitute grounds for canceling the agreement or receiving any discount/compensation."