(hereinafter: "the First Addendum").
I will note that according to the defendant's claim (which in practice the plaintiff does not dispute, since she also agrees that the first addendum was exchanged between the parties, but at the end of the day the first addendum was signed in the form as cited above), prior to the signing of the agreed version of the first addendum, a previous version was prepared, which was also signed by the plaintiff (Appendix 3, page 139 to the defendant's affidavit), In this version, sections 1-4 are identical, section 7 includes a provision similar to section 5 in the first version, while sections 5-6 state that:
"5. It is agreed that in the event that the area of the garden adjacent to the owner's apartment is less than the area in the plans of Appendix B2 to the Agreement, up to an area of at least 90 square meters, this will not constitute grounds for cancelling the Agreement and/or cancelling or changing this Addendum, and all this without derogating from the provisions of the Agreement with respect to permissible deviation. The developer undertakes to submit the application for a permit in accordance with the areas specified in the plans of Appendix B2.
- As part of the application for a building permit, the developer will request the opening of an additional window in the safe room in the owner's apartment, subject to the approval of a protection consultant and the instructions of the authorities. It is clarified that in the event that the additional window is not approved as aforesaid, this will not constitute grounds for cancelling the agreement and/or cancelling or changing this addendum."
(For the convenience of the hearing, this version will be referred to hereinafter: "Draft of the First Addendum").
However, as clarified, the parties do not disagree that the relevant binding addendum is the one that was defined by me as the "first addendum" (see the testimony of the witness on behalf of the defendant, Rubinstein, on page 58, lines 2-6).
- As stated, on May 28, 2015, the TAMA agreement was signed, followed by the second addendum to the TAMA agreement between the defendant and all the existing (old) apartment owners - including the plaintiff (I will note that there is a dispute between the parties as to when the apartment owners signed this appendix). The plaintiff claims in its summaries that they signed Appendix B between December 2018 and March 2019, while the defendant claims that the majority of the apartment owners signed this addendum in January 2018). Section 4 of this Addendum provided that:
"The Ronda Golden Apartment (Apartment No. 1) will have a garden attached as described in the attached plans. Insofar as there is a planning, registration or other impediment to the registration of the attachment or part thereof, the tenants give their consent to any registration or other arrangement that will guarantee the rights of Mrs. Golden and/or any third party who purchases the aforementioned apartment from her in connection with the garden area."