(1) An amount equal to the rent of an apartment of similar size and location, multiplied by 1.5 - for the period that began on the contractual date and ended at the end of eight months from that date;
(2) An amount equal to the rent of an apartment of similar size and location, multiplied by 1.25 - for a period beginning nine months after the contractual date onwards.
(b) The compensation set forth in this section shall be paid at the end of each month for that month; the compensation for up to the sixty days beginning on the contractual date shall be paid at the end of the said sixty days.
(c) Notwithstanding the provisions of subsections (a) and (b), the parties to the sale contract may agree that the said minor clauses shall not apply to delays in delivery caused as a result of circumstances beyond the seller's control and that the risk of their occurrence and consequences is not imposed on him."
Is plaintiff 14 silenced from filing a lawsuit?
- The defendant claimed in the statement of defense that plaintiff No. 14, Mr. Maxim Segal, signed a waiver of claims and a compromise against her on December 31,2023, in which he declared, inter alia, that in exchange for receiving monetary compensation from her in the sum of ILS 10,000, all of his demands and/or claims in the context of the sale agreement would be finally and completely dismissed, and therefore his claim should be dismissed. She further argued that when Mr. Segal did not file a reply to the statement of defense, and in his affidavit, which he signed on August 11,2025, did not refer to the agreement dated December 31,2023, he was not entitled to demand compensation by virtue of section 5A of the Sale of Apartments Law.
- The defendant refers to a judgment of the Supreme Court, which, according to her, strengthens her position 2266/10 Ilan Cohen v. The Check Ltd. (hereinafter: "the Cohen case"). In the judgment, it was determined that if the plaintiff did not respond in the reply to the argument that arose from the statements of the statement of defense with regard to a waiver agreement between the parties, which could have nullified the entire claim in the first place, his claim would be dismissed.
- It was copied from Nevothat Mr. Segal's conduct raises a difficulty. First, he should have argued in the statement of claim in advance with respect to the waiver as required in the Cohen case. Second, he could and should have responded to the claim regarding the waiver by submitting a reply to the statement of defense, and at the latest in his affidavit. However, he did not address this in his affidavit or even at the summary stage. However, the court does not see his omissions as justifying the rejection of his claim for the following reasons:
- In a similar matter, the court ruled in a judgment Civil Case (Shalom Rishon LeZion) 16297-08-17 Mazal Dimri v. Rom-Rimon Properties and Construction Ltd. (Nevo 12.2.2021) (hereinafter: "the Dimri case") as follows: "Notwithstanding the aforesaid, I am of the opinion that the judgment can be based on the determination that the waiver is void because it contradicts a cogent right. This is primarily a legal argument, which is not based on factual data unique to the present case. When it comes to a legal reasoning, the rule is that the court may raise it on its own initiative, even if this power will be used sparingly and in appropriate cases, when this does not violate procedural fairness and the legal conclusion can be reached on the basis of the facts that have been proven to be valid (see, Civil Appeal 4839/92 Ganz v. Katz, IsrSC 48(4) 749,761-762 (1994); Civil Appeal Authority 7956/99 Housing and Development for Israel v. Ma'ale Adumim Municipality, IsrSC 56(5) 779,789 (2002); Civil Appeal 8021/03 Elisha v. Elisha, IsrSC 59(3) 337,345 (2004)."
- For our purposes, Mr. Segal's claim is a claim for the realization of a cogent right to which he is entitled by virtue of section 5A of the Sale of Apartments Law. Section 7A of the Sale of Apartments Law states that the provisions of the Law should not be stipulated except in favor of the buyer (Dimri case; Civil Appeal Authority 6605/15 Shemesh v. Space Construction and Development Ltd. [Nevo] (February 21,2016) (hereinafter: "Shemesh Rule"). In the judgment Civil Case (Shalom Chai) 14561-12-21 Dan Lieberman v. H.B. Holdings (2014) Ltd. (Nevo, March 4,2025), it was held that "even if I had determined that at the time of signing the delivery protocol and the document in question, the plaintiff waived the compensation under section 5A of the Law, and as stated, I determined that this was not the case, there is no legal validity for such a waiver." Following this, Civil Case Judgment (Tel Aviv District) 38922-07-16 Nive Zemer Tov et al. 78 v. Gindi Holdings Ltd. (Nevo, June 30,2021) noted that "even if there was a voluntary consent to sign the forms, the courts have repeatedly ruled that since the provisions of section 5A of the Sale Law are cogent, an agreement to receive reduced compensation, even if signed voluntarily, is invalid" (ibid., at para. 28).
- In addition, in the Cohen case, on which the defendant relied, the court deleted the claim and did not dismiss it, as part of the summary dismissal of the statement of claim, whereas in our case no motion was filed for summary dismissal of the claim andthe hearing of the dismissal of the claim was held only at the summary stage.
- In addition, on the merits of the claim, the plaintiffs referred in the statement of claim to the issue of their signing a waiver of their rights in general, when they claimed that the defendant "chose to resort to repeated tactics, of having tenants sign documents and agreements that include depriving clauses, which are illegal, and contradict public regulations." They added that the defendant did this "in order to discourage the plaintiffs, and to prevent them from insisting on their rights." The defendant claimed in the statement of defense that Mr. Segal waived his claims against her, and in the affidavit of Mr. Omer Mor, she claimed that on December 31,2023, Mr. Segal signed a waiver of claims and a compromise against her, and in the framework of this waiver, he declared that in exchange for receiving monetary compensation in the sum of ILS 10,000, all of his demands and/or claims in connection with the sale agreement would be finally and completely dismissed. The defendant did not mention the nature of the waiver agreement that was attached as Appendix 3 to the statement of defense, a perusal of which shows that it anchors her agreement to provide compensation because she did not lower the floor of the apartment at Mr. Segal's request. It has already been determined in case law that the waiver agreement should be interpreted due to the circumstances in which it was signed (see Civil Appeal 7379/18 Hadar Itzhaki v. Ron Itzhaki (Nevo, December 18,2019), paras. 14-23). Admittedly, the waiver that Mr. Segal signed ostensibly deprives him of any possibility of arguing claims against the defendant - however, the essence of the waiver contract is in matters of floor leveling, and it is difficult to derive from it such a broad waiver that includes, inter alia, a waiver of a cogent right related to a completely different matter - statutory cogent compensation for delay in delivery. In other words, the compensation received by Mr. Segal is in direct context for the renovation that he himself will make to the floor. If this is not enough, but this sum does not compensate for any future damage that may be caused to Mr. Segal in the framework of the sale agreement, or to close the doors of the court to him in advance.
- In addition, in these unique circumstances, it was expected that the defendant would actually interrogate Mr. Segal and try to convince the court that when he signed the agreement in which, according to her, he waived his right to compensation for delay in delivery, he was aware that he was waiving a cogent right, but she refrained from interrogating him.
- Therefore, the court rejects the motion to dismiss Mr. Segal's lawsuit, but will take into account his procedural conduct in the hearing regarding the expenses.
Should the date of delivery of the elevators be considered the date for the actual delivery of the apartments?
- In the statement of defense, the defendant rejected the plaintiffs' request to consider the date on which the delivery protocol for elevators was drawn up between the representative of the condominium and the elevator supplier as the actual delivery date of their apartments; She argued that receiving the certificate of completion, the apartments and the building are fit for occupancy and delivery, all the more so after the delivery protocols of the apartments themselves have been carried out and the tenants live in the apartments, make use of them and the common property, while dealing with malfunctions in the common property is part of the inspection period and is carried out with the elevator company, and certainly this date should not be regarded as the date of delivery of their apartments. She further argued that this also contradicts a variety of statements made by the plaintiffs in real time that they never saw this date as the date of delivery of their apartment.
- In their summary, the plaintiffs discussed the argument that the lack of a usable elevator justifies their refusal to accept their apartments until the elevator was used.
- The defendant claimed in its summaries that in accordance with the sale agreements, it is the responsibility of the representatives of the buildings to sign an agreement with the elevator company for the purpose of operating them, and any delay in the implementation of the aforesaid is at their door and is not its responsibility. She further claimed that she handed over the common property, including the elevators, to the representatives during the middle of August in a proper and appropriate condition, with the exception of a number of aesthetic defects that do not prevent the use of the elevators. She further claimed that from the date of receipt of the completion certificate, the apartments and the building are fit for occupancy and delivery, including those connected to essential infrastructures and there is safe access to them, and the plaintiffs signed delivery protocols confirming that the apartments are habitable. She further argued that even if the plaintiffs could not make use of their apartment as a result of the elevators not working, it is not possible to claim compensation under the Sale of Apartments Law for delay in delivery, but at most to claim relief for loss of rent or prevention of use. The defendant referred to a judgment of the Small Claims Court in Afula in small claim 42316-01-25 Chen v. Yahalom, which relates to the same project, in which the court rejected a similar argument there, on the grounds that defects in the elevator that do not prevent reasonable use did not prevent the timely delivery of the apartment. Another claim was that some of the plaintiffs admitted in real time that the date of delivery of their apartment fell on the date of drawing up the details of all the delivery and not at another time.
- According to the law, the starting point is that an elevator must be installed in a building with more than four floors - see Appeal (Tel Aviv) 13025-04-21 G. Gush Etzion 26 Givatayim Ltd. v. Givatayim Local Planning Committee (Nevo). Although there is an exception to this in a new wing or residential building where the height difference between the level of the determining entrance and the level of the apartment on the highest floor is less than ten meters, the defendant did not claim that this exception applies in our case. Hence, the provision of an occupancy form for the building does not cure the non-existence of an elevator that allows reasonable accessibility to the purchaser of the apartment from the fifth floor and above. Therefore, in the absence of reasonable accessibility to the apartment, it should not be considered a habitable apartment. This is without derogating from the right of owners of apartments up to the fourth floor to claim compensation for loss of enjoyment of the apartment. It should be noted that the judgment in the Chen case, to which the defendant referres, does not help her, since it relates to buyers of an apartment on the fourth floor.
- The court rejects the defendant's argument that she was ostensibly entitled to exempt herself from the provision of a usable elevator by imposing the liability, including contractual, for the operation of the elevator, on another party, such as the representative of the condominium. At most, to the extent that the defendant believed that the representative office was allegedly negligent, and she did not claim so in her summaries, it is possible that her rights in this matter are reserved in relation to the representativeship. However, with respect to plaintiffs who purchased an apartment from the 5th floor and above, she is liable to provide a usable elevator at the time of delivery of possession of the apartment, and since she did not meet this obligation, she must pay compensation for delay in delivery until the date of delivery of the elevator when it is in use. In addition, the court does not find any substance in the defendant's claim that the plaintiffs recognized the date of delivery in real time and retracted them at the time of filing the claim, by referring to a hearing on Mr. Segal's alleged waiver of a cogent right. The court's conclusion on the same matter is also applicable to this argument.
- According to the plaintiffs' summaries at 11 Argaman, Mr. Alexey Meirov's apartment is located on the 5th floor, and the apartments of Yevgeny and Lulov Boltin and Maxim Segal are located on the 6th floor. According to the plaintiffs' summaries in Argaman Building 13, the apartment of Anna and Hagai Sapir is located on the 5th floor and the apartment of Vitaly and Anna Blank is located on the 6th floor. In addition, the apartment of Irit and Yigal Wax is located on the 7th floor, and the apartment of Vitaly and Anna Blank is located on the 6th floor. Hence, the delay until the date of delivery of the elevator relates to a total of six apartments.
The claim that the defendant was not late in delivering the "Buyer's Price" apartments
- The defendant claimed in the statement of defense that the plaintiffs refrain from detailing in their laconic and naïve statement of claim that in all the sale agreements of the purchasers who purchased their apartments as part of the "Buyer's Price" framework (which were not attached to the statement of claim) there is an explicit clause (clause D of Appendix B (Appendix of the Consideration) to the sale agreement (hereinafter: "clause D") that stipulates that the date of delivery of the apartment was ostensibly set for December 31,2022, unless the issuance of the permit for the project is delayed beyond April 15,2020, in which case any delay beyond this period will increase and extend the delivery date in a relative manner. She further argued that since the project's building permit was received only on September 24,2020,162 days after April 15,2020, the delivery date of the apartments purchased under "Buyer's Price" was extended accordingly to June 11,2023.
- Due to its importance, the content of section D is as follows:
"The date of delivery of possession will be on December 31,2022.