The defendant adds that after all the development, she completed the construction in accordance with the permit and invited the plaintiff to receive possession of the apartment, but only then did the plaintiff unexpectedly raise her claims regarding the attachment of the garden.
- In light of all the aforesaid and detailed, the defendant argues that it is clear that its obligation with respect to the garden area that will be attached to the plaintiff's apartment was only an "obligation to make an effort", and is subject to the approval of the municipality as a condition, and not an absolute "obligation of consequence". According to the defendant, this determination is supported by case law, and accordingly, when it comes to approval from an external party such as the municipality, the tendency is to classify the obligation as an obligation to make an effort. The defendant further argues that in accordance with the case law, where it is clear that taking additional steps would not have changed the outcome, the avoidance of them should not be regarded as a breach. On the merits, it was argued that the defendant did indeed submit an application for a permit in which she requested that the entire garden area be attached to the plaintiff's apartment, but the documents indicating this were not kept over the years. It was further argued that in fact, in the plaintiff's claim, and in accordance with it, the defendant should have shown that she applied for a permit, the plaintiff changes the condition set out in section 7 of the first addendum, in which it is written that the aforesaid is conditional on "the approval of the municipality" and not on "obtaining a permit". It was argued that the wording as chosen indicates the concrete uncertainty that prevailed regarding the possibility of attaching gardens.
- In any case, according to the defendant, in view of the fact that it has been proven that the municipality's policy did not allow the annexation of an area as claimed to the plaintiff's apartment, in any case there is no reason to determine that the defendant breached the duty of due diligence imposed on it, since it should not be forced to perform actions that are clearly barren. According to the defendant, the municipality's policy was clearly proven in the framework of the proceeding and was supported by the evidence presented therein. This was first stated in the local committee's decision of April 5, 2014 (Appendix 4 to the defendant's affidavit), in which it was explicitly determined that the application for a permit was approved "... No fences for front building lines for Renanim Street and the French People's Breasts." According to the defendant, this decision indicates that it is not possible to attach a garden to the front as a private garden, since the prohibition on erecting fences effectively prevents the possibility of creating a physical separation or attaching the garden to this façade as a private yard. The defendant further argues that the policy, as claimed by it, is supported by the certificate of the public servant submitted by Mr. Oren Arad of the Licensing Department. This is primarily because, in the framework of the public servant's certificate, Mr. Arad clarified that the significance of the local committee's decision from 2014 is that there is no planning possibility to attach the garden to the front of the building (as claimed by the defendant). In addition, in section 2 of the Public Servant's Certificate, it is explicitly stated that the municipality's spatial guidelines state categorically that "the attachment of outdoor areas in the front and/or front facing the street in an apartment on the ground floor will not be approved" - i.e., this section also reinforces the existence of a preventive policy. It was further argued that the existence of a preventive policy was also supported by Mr. Arad's testimony in court, in which Mr. Arad testified that as far as he was aware, the first policy that addressed the issue was from 2016 in the form of spatial guidelines published at the time. It was argued that not only did this testimony support the existence of a preventive policy, but it also supported the timetable claimed by the defendant. That is, uncertainty at the time of the signing of the first addendum, the beginning of the formulation of the policy on the date when negotiations for the issuance of a building permit began, and finally the problems with the issuance of the building permit (in 2018).
- It was argued that this timetable was even in line with the defendant's claim, and accordingly she contacted the plaintiff, after receiving the municipality's position and informed her that linkage would not be possible. It was further claimed that at that time the plaintiff received an offer to cancel the upgrade and receive a standard apartment, but she chose to continue with the agreement. According to the defendant, this conduct establishes estoppel and impediments against the plaintiff.
- The defendant further argues that the second addition to the TAMA agreement is not part of the obligation of its efforts, but rather constitutes an obligation of the owners of the old apartments towards the plaintiff, which the defendant cannot enforce in any case. In addition, the defendant claims that the purchasers of the new apartments are not a party to this arrangement, and that in the course of the plaintiff's testimony it became clear that her claim that the defendant undertook to obtain the consent of the latter to the second addendum was not factually based and was merely claimed. It was further argued that insofar as it is determined that the defendant must continue and try even after 2018 (i.e., after the signing of the second addendum), it is unreasonable to determine that the defendant should have included in the agreements with the new tenants a unique condition regarding the right of use for the benefit of the defendant, and this requirement could have harmed the advancement of the project. It was argued that the aforesaid supports the fact that the entire contractual array with regard to the garden should be treated as a limited effort obligation contingent solely on the approval of the municipality, and not as an absolute consequence obligation on the part of the defendant.
- With regard to the burdens, the defendant argues that the plaintiff's claims regarding "admission and dismissal" should be rejected. This is given that in order for this rule to apply, the defendant is required to admit all the material facts that establish the cause of action within the framework of the main pleadings themselves. It was argued that in our case, the defendant never admitted in her pleadings any breach of the agreement, but emphasized that she fulfilled all of her obligations, including the obligation to make an effort, in good faith and in full. It is further emphasized that the defendant does not admit the facts that establish the cause of action while qualifying them with a new claim, but completely denies the very existence of the infringement on the grounds that the absolute obligation to attach the garden did not arise in the first place, and therefore the burden of proof remains entirely on the plaintiff's shoulders.
- Without derogating from all of its arguments, the defendant argues that the remedies as claimed by the plaintiff should be rejected. Thus and first, with regard to the enforcement remedy, it was argued that there is an inherent difficulty in the registration of the part of the garden facing the street in a manner that is contrary to the municipality's policy, especially when the municipality is not a party to the proceeding. In addition, according to the defendant, the plaintiff did not at all meet the burden of proof that the enforcement remedy is legally feasible, planning and proprietary. At the same time, and in the margins, the defendant clarifies that she does not object to this remedy and is indifferent to it, since it does not own the rights in the land.
- Moreover, according to the defendant, even if there is room to compensate the plaintiff, her claims regarding the amount of compensation should be rejected. Thus and first, it was argued that in any event, according to the documents that require it, the maximum relevant garden area is 90 square meters, and not 128 square meters as claimed by the plaintiff. It was argued that in light of the aforesaid, the starting point for the expert opinion on behalf of the plaintiff should be negated, and accordingly the plaintiff was promised an area of 128 square meters of garden. It was argued that another error in the appraiser's opinion on behalf of the plaintiff is that in the framework of the opinion, the damage was calculated according to the method of existential interest for the protection of a hypothetical asset that has no planning feasibility, instead of using the method of "adjustment compensation", which was adopted in case law. In support of this argument, the defendant refers to Civil Appeal 2274/21 Mor v. Elad Israel Residences Ltd. (January 1, 2023), in which it was determined that a purchaser who wishes to perform a contract despite misrepresentation is entitled to "adjustment compensation" that will reflect the real-time distribution of risks. It was argued that this method requires a relative percentage comparison between the market value of the property according to the representation and its real value at the time the contract was signed, and not according to the prices of 2021 as performed by the plaintiff's appraiser. On the basis of these principles, the defendant presents three alternatives for calculating the maximum compensation:
The first alternative, based on the pricing key in the upgrade notice and accordingly, the garden's relative share of the consideration paid by the plaintiff (ILS 950, 000) was only approximately ILS 132, 260. It was argued that the difference between the expected value of a garden of 90 square meters (₪783, 832.5 = 90 square meters x 8, 709.25 NIS) and the actual garden of 77 square meters (₪670, 612.3 = 77 square meters x 8, 709.25 NIS) reflects a reduction of about 14.4%, and that applying this ratio to the relative consideration portion of the garden puts the maximum compensation at only ILS 19, 045.