the plaintiff's claims;
- According to the plaintiff, the claim revolved around a blatant and fundamental breach of the defendant's undertakings to upgrade her apartment to a garden apartment with a garden area of at least 128 square meters, for which the plaintiff paid an additional sum of ILS 950, 000. In practice, close to the date of delivery of the apartment on November 3, 2022, it became clear to the plaintiff that the garden strip had been reduced in favor of the common property and that the area of her garden had been reduced to only 77 square meters. In these circumstances, the plaintiff petitions first and foremost for the enforcement of the agreement as an injunction for the registration and attaching of the garden, and alternatively for the payment of the sum of ILS 706, 000 for the decrease in the value of the apartment and the severe violation of its privacy. According to the plaintiff, the defendant's defense turned out to be an absolute defense of fabrics, after it emerged from the evidence that the defendant had never submitted a request to the local committee to attach the garden as private, and in any case did not receive any refusal from the municipality. In addition, it was argued that the defendant's claim that the additional consideration was paid for the differences in the areas of the apartment and not for the realization of the plaintiff's dream of receiving the promised perimeter garden was completely contradicted. It was further argued that the defendant's refusal to summon substantial witnesses on its behalf, together with the absence of an appraiser's opinion contrary to the professional opinion of the appraiser Amit Ziv, on behalf of the plaintiff, strengthens the plaintiff's version and requires that the claim be accepted in full.
- In more detail, the plaintiff opens by arguing that the defendant's claim, and accordingly the consideration paid by the plaintiff in the framework of the first addition, is not for the garden, but for the addition of areas to the plaintiff's apartment - which turned out to be fabric protection. Thus, the plaintiff explains that a perusal of the first addendum shows that it does not mention the addition of space to the apartment even in the slightest. However, all that is mentioned is an upgrade due to the addition of a garden and the opening of a window. The plaintiff further refers to her testimony, which indicates that the increase in the area of the apartment was secondary to her, and that "the essence was a garden apartment with a garden area of about 128 square meters", evidence that, according to her approach, remained solid even in her cross-examination. It was argued that in contrast to the wording of the first addendum and the plaintiff's testimony from "Kli Rishon". The defense's arguments were based only on the testimony of the defendant's CEO, Mr. Zvika Rubinstein, who admitted in his cross-examination that he had no information in response to the question of who drafted the first addition, and in addition, he was unable to point to a document that supported his version that the consideration was paid for the differences in the areas of the apartments, but merely claimed that the agreement regarding the addition of the area emerges from the documents, and accordingly the plaintiff had an apartment of 97 square meters and it was upgraded to an apartment of 130 square meters."R. The plaintiff further points out that in the course of the investigation, the defendant's CEO tried to explain that the source of the wording of the first addendum stemmed from the instructions of tax consultants - who were not brought to testify. In addition, it was claimed that in the course of his testimony, the defendant's CEO referred to a table of areas that was attached to the TAMA agreement. However, according to the plaintiff, it is not possible to rely on this table of areas, since it is not mentioned in the first addendum, but was attached to the TAMA agreement that was signed two years later.
Therefore, the plaintiff argues that the defendant's version, and accordingly the payment that is the subject of the first addition is for upgrading an additional area to the plaintiff's apartment, is a fabric protection intended to enable the defendant to evade its unequivocal obligations to the plaintiff.
- The plaintiff further argues that the document known as a notice (mentioned above in paragraph 6 of the judgment and attached as Appendix 2 to the defendant's affidavit), in which it was detailed that if any of the tenants wanted to upgrade his apartment, the consideration for each square meter of an additional apartment would be ILS 21, 000 - was never sent to the plaintiff or to any of the other owners of the rights in the building. According to the plaintiff, this is a stolen document, which was prepared for the purpose of this claim only. It was further claimed that as to the sending of the document, it was further claimed that from the cross-examination of the defendant's CEO, Rubinstein, it emerged that he had no personal knowledge or actual evidence regarding the sending of this message, including that he admitted that he did not know when the message was sent, to whom it was sent, or who actually drafted it. It was further argued that the defendant did not present any reference to the sending of the notice by regular mail, by registered mail or by means of a confirmation of receipt - which is puzzling, considering that according to the defendant the document was sent to all the tenants and therefore, prima facie it would have been expected that documentation indicating that it was sent in which of the tenants' files would be waived. In these circumstances, it was argued that the defendant's claims that the document was sent should be rejected - given that the delivery of this letter in real time was not proven.
- The plaintiff further adds that additional support for her claims, and in accordance with them, the defendant undertook to upgrade her apartment to an apartment with a garden of 128 square meters, can be found in the second addendum to the TAMA agreement. It was argued that clause 4 of this addendum clearly shows that the defendant undertook to attach to the plaintiff's apartment, condemned it as described in the attached plans, and the tenants gave their consent to any registration arrangement that would guarantee her rights. According to the plaintiff, a review of the dates of the tenants' signatures on the second addition shows that they signed the second addition as of December 2018 and during 2019, when the building permit was granted as early as April 2018. It was argued that in these circumstances, the defendant continued to present the plaintiff with a representation according to which attaching the addition was possible even after the building permit was granted. In this context, the plaintiff refers to the interrogation of the defendant's CEO, in which he was asked how, after receiving a building permit, from which it emerges, according to the defendant's claim that the garden cannot be attached, the defendant had the apartment owners sign the undertaking to attach the garden, which she claimed was impossible. According to the plaintiff, in response to this question, the defendant's CEO gave a stammering answer and claimed that he did not remember the details - testimony that also proves that the defendant's version is an absolute fabric defense that has no truth. In these circumstances, the plaintiff argues that the second addendum constitutes additional direct written evidence of the defendant's irrevocable undertaking to grant her rights thereto, even in the case of a registration denial, and contradicts the claim of uncertainty that was already known at an early stage.
- Moreover, according to the plaintiff, from the evidence presented to the court, it is clear that the defendant did not prove at all that she submitted an application for a permit in which she attached the apartment to which she undertook to be attached, and in addition, it became clear that - contrary to her claims - it was not proven at all that attaching the apartment was not possible according to the municipality's policy on the relevant dates. Thus and first, it was claimed that in the testimony of the defendant's CEO, Rubinstein, he tried to attribute the failure to attach the garden to the decision of the local committee from 2014. However, an examination of this decision (which was attached as Appendix B to the public servant's certificate) reveals that it does not say anything regarding the rejection of an application for attachment of an apartment, but that all it mentions is a general restriction on the construction of front fences only. The plaintiff further refers to the continued testimony of the defendant's CEO, in which he admitted that he did not have any document, original request or correspondence with the municipality, attesting to his refusal to attach the garden to the apartment, and claimed that "these are things that we do not keep and do not keep." Moreover, according to the plaintiff, the conclusion that arises from the testimony of the defendant's CEO, and accordingly no application for a permit was submitted requesting the attachment of the garden, was also supported by the testimony of a representative of the municipality, who explicitly clarified that he did not find any document in the building file in which the municipality refused the request to attach the garden as a private garden adjacent to the plaintiff's apartment. Moreover, according to the plaintiff, in his testimony the representative of the municipality even added and confirmed that the building permit that was given in practice includes an area of 135.8 square meters for the plaintiff's apartment, which includes a garden, in complete contradiction to the defendant's false claims (in support of this claim, the plaintiff refers to the testimony of the municipality representative on page 25, lines 1-9 of the transcript).
Moreover, according to the plaintiff, in the original permit granted on April 30, 2018, and in each of the applications for the change permits, there is a sketch with a table of areas attached to it, and in each of the tables of areas the area appears the area of the disputed garden that is expected to be adjacent to the plaintiff's apartment - in an area of about 135 square meters. According to the plaintiff, in the course of his testimony, the defendant's CEO claimed that the permit application corrected the attachment in the drawing - which is the determining factor, but due to an error, the table of areas was not also amended. However, according to the plaintiff, no sketch was presented in which the plaintiff's garden was marked as a private garden, and the marking as aforesaid was amended in light of the municipality's refusal to classify the garden as private.
- Moreover, according to the plaintiff, in an attempt to divert attention from the fact that the defendant did not submit an application for a permit with the attachment of the garden, the defendant tried to claim that the municipality's policy does not allow the attachment of the garden. However, none of this claim has been proven at all. Thus, the plaintiff refers in this context to the testimony of a representative of the municipality, who confirmed, as stated in his testimony, that the permit was actually granted included a covered balcony with a garden "in an area of 135.8 square meters for the plaintiff", this witness further testified that he was not interested in what was approved in the specific permit itself, and finally testified that he did not bring with him any document indicating the municipality's policy at the relevant times, but that his testimony relied only on a policy document from 2021 - i.e., on a date that is not relevant to this claim.
- According to the plaintiff, the conclusions that are required from all of this are that there is no decision by the local committee that denies the attachment of the garden to the plaintiff's apartment, neither directly nor indirectly; The defendant did not present any proof of the existence of a refusal by the municipality to any application; and the defendant's claim regarding "policy" is completely prevented.
- The plaintiff further claims that she has a right to enforce the undertaking to attach the apartment, as well as to receive an injunction exercising this right vis-à-vis defendants 2-107. This is in circumstances in which these defendants did not file statements of defense (except for a single statement of defense that was abandoned), did not submit any evidence and did not appear for the hearings, and therefore, the plaintiff is entitled to a full judgment against them in the absence of a defense and appearance. The plaintiff further emphasizes that, in the context of these defendants, the owners of the original apartments even signed the second addendum, which gives full consent to the requested enforcement remedy and any arrangement that will guarantee her exclusive rights in respect of it. In summary, the plaintiff argues that in the absence of a proven objection on the part of defendants 2-107 and that no decision was given by the local committee denying this proprietary linkage, the conditions for the issuance of an injunction instructing the actual enforcement are met.
- Without derogating from all of her arguments as detailed and in support of them, the plaintiff further argues that the defendant's arguments in this proceeding constitute essentially "claims of admission and dismissal", which transfer to the defendant the burden of proof and persuasion, which the defendant has completely failed to meet. Thus, it was argued that the defendant admits to the existence of a contractual obligation to grant the plaintiff property in respect of it, but claims that the local committee refused to do so - a claim that constitutes an "impeachment" that has not been brought to it even a shred of evidence. Moreover, it was argued that the defendant's claim that most of the payment paid by the plaintiff related to the area of the apartment also constitutes a claim of admission and dismissal, which was contradicted head-on in the language of the first addendum, which does not mention this component at all.
- Moreover, the plaintiff refers - as evidence of the existence of an evidentiary presumption that acts against the defendant's version - to the defendant's failure to testify to relevant witnesses who can testify directly in support of her claims and her choice to testify on her behalf, CEO Rubinstein - who admitted that most of the facts were not with his personal knowledge and raised claims that they were hearsay testimony only. In this context, the plaintiff refers to the fact that the defendant deliberately refrained from summoning essential witnesses who could have shed light on the dispute: Mr. Sagi Klein, who conducted the direct negotiations with the plaintiff and, according to the defendant, drafted the "notice regarding the upgrades"; the company's tax consultants, and finally the architect Gidi Bar Orian, who prepared the applications for the permit. It was further claimed that the defendant refrained from presenting original documents of the project file. According to the plaintiff, the defendant's refusal to bring witnesses and the original documents of the project file speaks for itself and indicates its attempt to deceive the court.
- The plaintiff concludes that it has been proven that the defendant breached her undertaking to attach a garden of about 128 square meters to her apartment. Inpractice, only 77 square meters were attached to the apartment according to a graphical measurement, i.e., a huge area of about 51 square meters was subtracted. According to the plaintiff, from the evidence, it emerged that there was no impediment to ordering the enforcement remedy requested by her, in which a garden would be attached to her apartment. Alternatively, the plaintiff claims that since the agreement between her and the defendant was violated, she is entitled to restore the situation to its previous state and to an alternative depreciation ruling for enforcement. It was argued that without derogating from this, when the defendant collected from the plaintiff the sum of ILS 950, 000 for a garden area of 128 square meters, but in fact provided a very small garden, the defendant enriched herself and not at the expense of the plaintiff, and even for this reason the plaintiff is entitled to recover the gap that she paid for the garden that was not attached.
The plaintiff further claims that the rate of depreciation is supported by an appraisal opinion by the appraiser Amit Ziv on her behalf. According to her, from the opinion, it appears that the decrease in the value caused to the plaintiff's apartment is divided into two intertwined levels: the reduction of the garden area and its transformation from a continuous perimeter area into two small and detached yards, and a severe and extreme violation of its privacy. As for the latest infringement, it is detailed that the conversion of the private garden into common property exposed the windows of the plaintiff's bedrooms and bathroom to passers-by, without the ability to install a physical barrier from the street. The opinion also detailed that the depreciation due to the loss of the garden area and the severe violation of privacy amounted to ILS 706, 000 as of August 10, 2022. According to the plaintiff, the appraiser Amit Ziv defended his opinion in a detailed cross-examination and explained the determination of the value values according to ILS 34, 800 per built square meter and a coefficient of 25% for a garden area. According to the plaintiff, the defendant chose not to submit a counter-appraisal opinion on its behalf and made do with mere claims, and therefore the plaintiff's appraiser's determinations were not contradicted and should be accepted in full. On the basis of this appraisal, the plaintiff petitions - as an alternative remedy to the enforcement remedy - to receive full monetary compensation in the sum of ILS 706, 000, together with linkage differences and interest from the date of filing the claim until the actual payment.
- In light of all of the above, the plaintiff argues that her claim should be granted, and that proprietary enforcement relief should be ordered as an injunction against the defendant and against defendants 2-107. Alternatively, to the extent that enforcement is determined that enforcement is not possible, the court was asked to award in favor of the plaintiff the monetary compensation for the impairment in the sum of ILS 706, 000, together with linkage differentials and interest as required by law from the date of filing the claim.
The defendant's arguments
- The defendant argues that the claim should be dismissed in its entirety, since its obligation with respect to the area of the garden was only an obligation to make an effort, which is subject to the approval of the municipality, and not an absolute obligation to observe the result. According to her, the plaintiff was well aware of the planning limitations and the uncertainty, and although the matter was made clear to her, she refused an explicit offer to cancel the upgrade and receive her money back at the meeting on January 17, 2018. It was argued that this conduct of the plaintiff establishes estoppel and impediments against her, and her attempt to ignore the facts that were given to her in real time amounts to a lack of good faith. Moreover, it was claimed that the upgrade of the apartment gave the plaintiff a significantly larger apartment of 130 square meters instead of a regular consideration apartment of 97 square meters. According to the defendant, most of the consideration for the upgrade in the amount of ILS 950, 000 was paid for the additional built-up area and not for the garden. Moreover, the defendant points out that in any event, the relevant garden area according to the later documents is at most 90 square meters and not 128 square meters. Finally, the defendant claims that the appraiser's opinion on behalf of the plaintiff is fundamentally flawed and does not apply the method of "adjustment compensation" that was determined in the case law.
- In more detail, the defendant begins by arguing that as a basis for examining the arguments in this case, the nature and content of the engagement between the parties must be analyzed. In this framework, and first, the defendant refers to the upgrade transaction - the subject of the first addition - and claims that it clearly included two main components: increasing the built-up area of the apartment by 33 square meters, and receiving an apartment with a garden adjacent to it, the area of which will be as large as possible, subject to the approval of the municipality. The defendant emphasizes that any attempt to attribute the full consideration of ILS 950, 000 to the garden component alone, while ignoring the tremendous physical and economic upgrade of the area of the apartment itself, is artificial and lacks an evidentiary basis. With regard to the upgrade transaction, the defendant specifies that there is no dispute that the plaintiff received an additional area of 33 square meters for her apartment, since, in accordance with the TAMA agreement signed on May 28, 2015, the owners of the old apartments were entitled to regular consideration apartments with an area of about 97 square meters, but in practice, the plaintiff actually received an upgraded apartment with an area of 130 square meters. It was further argued that contrary to the plaintiff's claim, the center of gravity in the upgrade is on adding the area to the apartment and not on adding the garden area. According to the defendant, support for this can be found in an analysis of the provisions of the first addendum. This is first of all from the provision of section 7, which explicitly states that the enlargement of the garden is subject to the approval of the municipality - since the engagement was made at an early stage prior to the signing of the TAMA agreement and the submission of an application for a permit, and naturally before receiving the municipality's response. It was argued that the stipulation in this section is similar in essence to that stipulated in section 6, which also requires the opening of an additional window in the safe room with the approval of the Defense Advisor and the Home Front Command. It was argued that from the aforesaid it can be learned that the two sections do not deal with an absolute undertaking, but rather with obligations contingent upon receipt of approvals. The defendant further refers to the provision of section 8, and accordingly the failure to obtain certificates will not constitute grounds for cancellation or compensation. With regard to this section, it was initially argued that there was a clerical error in the section when the word "apartment" was written instead of the word "garden". It was argued that this mistake arises clearly from the fact that the previous sections discuss opening a window and enlarging the garden, without mentioning the issue of the size of the apartment at all. Moreover, it was argued that it is clear that clause 8 does not apply to the change in the size of the apartment - since reducing the area of the apartment by tens of meters constitutes a dramatic change in the building plan, and therefore it is inconceivable that a change in this will not allow for a refund or cancellation of the agreement. As further support for this claim, the defendant refers to the plaintiff's testimony, in which she confirmed that in real time she did not pay any attention to or attribute significance to the difference between the words "apartment" and "garden" in this section, testimony that omits her claim that she relied on this wording at the time of the engagement.
It was further argued that the plaintiff's argument that she did not attribute and does not attribute any significance to the enormous economic and functional gap of about 33 square meters between the regular consideration apartment and her upgraded apartment should not be accepted, as if this addition was given to the plaintiff free of charge. In this regard, it was first argued that in the framework of her testimony, the plaintiff herself admitted that she should have received an apartment of 97 square meters and that she knew that she had received a large apartment for 33 square meters. In this context, it was argued that there was no reason to bring Sagi Klein, who signed the plaintiff's first addition, to testify, since there is no dispute that the plaintiff admits that she did receive an apartment in a larger area than the consideration apartment she was entitled to, but that she claims that subjectively this is not the reason why she paid for the upgrade. However, according to the defendant, the plaintiff's claim, and accordingly she received an additional area for her apartment without any payment, is inconsistent with the line of logic, and moreover, the plaintiff's disregard of the value of the built addition, while focusing on the garden, constitutes a lack of good faith and an attempt to enrich herself at the defendant's expense.