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.
I will note that according to the defendant, prior to the signing of the second addendum, a meeting dated January 17, 2018 between the plaintiff and the defendant's representatives was preceded by an e-mail message from the defendant's attorney to the plaintiff's attorney with the wording of the addendum (the summons of the meeting and the e-mail message were attached as Appendices 6 and 7 to the defendant's affidavits). According to the defendant, during the meeting, she informed the plaintiff that in light of the municipality's policy, which was reflected both in the local committee's decision in the objections to the permit and in the municipality's policy, it would not be possible to attach the garden area detailed in the first addendum to the agreement signed between the parties, and therefore it was proposed to the plaintiff to cancel the upgrade addition. However, the plaintiff refused the offer and decided not to cancel the upgrade addition.
According to the defendant, after the meeting, she even contacted the lawyer representing the apartment owners in order to create an agreed mechanism between the apartment owners and the plaintiff, whereby if there is a planning or registration impediment to attaching the garden area to the plaintiff's apartment, the apartment owners give their consent to any other arrangement that will allow the plaintiff to use the garden areas even if they are not attached to her apartment. According to the defendant, against this background, the second addendum to the TAMA agreement was signed, as detailed above.
- On April 30, 2018, a building permit No. 2018131 was issued for the project. The application for a permit includes a plan with a sketch - from which the defendant claims that the garden at the front of the condominium was not attached to the plaintiff's apartment, since it is marked as landscaping. The permit plan also includes a table of areas in which it was stated that the area of the plaintiff's apartment garden would be 135.8 square meters (the application for a building permit was attached as Appendix 10 to the defendant's affidavits, and a solar copy of the garmushka was also submitted to the court).
- According to the plaintiff, in an early tour that she held prior to handing over possession of the apartment, at the end of July 2022, she discovered that a large part of the garden area that she claimed she had purchased had been subtracted and turned into a "public garden" and that in fact a garden of about 77 square meters was attached to her apartment.
- In light of this, according to the plaintiff, she contacted the defendant's CEO, but did not receive a substantive response. Therefore, on September 18, 2022, the plaintiff sent a letter to the defendant in which she claimed a fundamental breach of the agreement.
- There is no dispute that on November 3, 2022, possession of the apartment was given to the plaintiff.
- On November 22, 2022, the original statement of claim was filed in the proceeding, in which only the defendant was sued. In the statement of claim, the plaintiff petitioned for enforcement relief, instructing the defendant to register the entire area of the garden agreed upon in the plaintiff's name, and also petitioned for alternative monetary relief.
- In the first pre-trial that took place in the proceeding on September 18, 2023, the defendant raised an argument and accordingly the enforcement remedy is not possible in light of the policy of the local committee, which does not allow the attachment of a garden area to the front space. In light of the defendant's arguments in this context and my argument - insofar as the plaintiff insists on the enforcement remedy, she should have added all the apartment owners, which on the face of it, if the garden is attached to the plaintiff's apartment, the common area they own will be detracted from - it was agreed that at an initial stage, a request for a public servant's certificate will be directed to the local committee, which will answer the following questions:
"1. Is it the committee's policy not to approve the attachment of courtyards to private apartments, where the said courtyards border the street?
- And whether, as a result of this policy not to allow the attachment of courtyards facing the street, it was made clear to the defendant that an application for a building permit in the Renanim 2-4 project would not be approved, to the extent that a yard of 128 square meters was attached to the plaintiff's apartment on the ground floor and that the yard in question bordered the French People and Vernanim streets."
- On November 5, 2023, a public servant's certificate was submitted to the file, which was prepared and signed by Oren Arad, Director of the Licensing Department at the Ramat Gan Municipality, in which he detailed the following:
"2. The policy of the Ramat Gan Local Committee is not to approve the attachment of courtyards to the front. This policy was established and published in the Spatial Guidelines in Chapter 3, Section 11.01 (Old Version):