In light of the aforesaid, I find it necessary to be precise and determine that in my opinion, the matters as determined by Justice Cohen in the Kletzuk case, with regard to the weakness of the protection of the property right, in the context of a reinforcement project, and certainly with the intensity as they were determined, are appropriate for cases in which the property right in the common property is violated, but a tenant whose right is violated will be entitled to a more extensive protection.
- Once the aforesaid has been clarified, I will turn to the examination of the arrangement set out in the Pinui-Binui Law. In accordance with this arrangement, where a majority of the apartment owners have agreed as required of the apartment owners to a Pinui-Binui project, the refusal of an apartment owner who is not reasonable for the transaction "no longer falls within the scope of a landowner's "bundle of rights", similar to other prohibited uses. The owner of an apartment in a condominium designated for evacuation and construction as aforesaid no longer has the right to make an unreasonable refusal without bearing responsibility for it. This restriction does indeed constitute a certain infringement of the apartment owner's freedom to do as he pleases with his property, but this infringement is done while balancing his right both against the public interest to improve the housing conditions in the Pinui & Binui complexes and against the right of the other apartment owners to make use of their property that will benefit them (by receiving a modern, and usually larger, apartment upon completion of the Pinui & Binui project). Moreover, the collective decision-making mechanism set forth in the law, according to which only when there is a privileged majority of the apartment owners will its arrangements apply, as well as the steps taken by the law to ensure that only if an apartment owner refuses a fair consideration for his apartment, will he be recognized as a recalcitrant tenant whose refusal is unreasonable, also dulls the property infringement, even if it is not evacuated." (ibid., paragraph 24)
- And what is the refusal that will be considered a reasonable refusal under the Pinui-Binui Law?
In the framework of section 2(b) of the Law, a list was established that is not closed (see the Schutzberger case in paragraph 30), which includes grounds for refusal as follows: the unfeasibility of the Pinui-Binui transaction at issue (section 2(b)(1) of the Pinui-Binui Law; the apartment owner who refuses was not offered alternative housing for the period of construction of the new building, or housing adapted to his limitations or the limitations of a family member living with him (section 2(b)(2) of the Law; no appropriate collateral was offered for the transaction (section 2(b)(3) of the law); there are special personal circumstances of the refusing apartment owner due to which the execution of the evacuation and construction transaction, under the conditions agreed upon with the other apartment owners, is unreasonable (section 2(b)(4) of the law; the consideration apartment does not include adjustments as they were in the original apartment for a person with disabilities or his family member living with him, or the value of the existing adjustments; the refusing apartment owner is an elderly person living in the apartment and was not offered an alternative as specified in the law, in addition to the possibility of receiving a consideration apartment (section 2(b)(6) of the law).
- Since, in the present case, the defendants raised an argument regarding the feasibility of the transaction, I find it to be further noted that in the framework of the case law, it was determined that the burden of proving the feasibility of an evacuation-reconstruction transaction is on the shoulders of the plaintiffs under this law (the Schwartzberger case in section 32), however, to the extent that an evacuation-reconstruction appraiser determines that the transaction is economically feasible, it is presumed that the transaction is economically worthwhile unless proven otherwise (section 2(b)(1) of the Law). As to the manner in which the economic feasibility of an evacuation-reconstruction transaction is examined, it was determined that it will be examined:
"Naturally, from an objective perspective that examines the project as a whole, and not from the subjective point of view of each of the apartment owners... In this context, it should be added that when examining the feasibility of the transaction, the court must remember that the apartment owners are entitled to reasonable and fair consideration, but not necessarily to an equal distribution of the project's profits between them and its developers. This is in view of the fact that the latter carry out all the actions required to carry out the project and bear the costs and risk of its failure. Reinforcement for this approach can also be found in the relevant standard of the Land Appraisers Council, which defines criteria for an appraisal examination of evacuation and construction plans and establishes a guiding principle with respect to the examination of consideration for apartment owners, according to which: