An appeal was filed against the judgment in the Eisen case, which was heard in Civil Appeals Authority 5108/23 Helen Eisen v. Tucker Leon Bernard (November 16,2023). The request for leave to appeal was rejected on the grounds that there is no justification for hearing the subject matter of the appeal in a third instance. At the same time, the Supreme Court, in paragraph 13 of the judgment, expressed its position regarding the test to be adopted, as follows:
"As to the Applicant's argument that the Trial Court erred in determining that the principle of equality between apartment owners does not require that a uniform area addition be added to each residential apartment, in rejecting this argument, the District Court expanded on the question of how the Supervisor is required to examine the objection of an apartment owner to sign a TAMA agreement, on the grounds that the agreement discriminates against him: according to a test of "quantitative-substantial" equality, which concerned a comparison between the addition of meters added to each consideration apartment; or whether according to the test of "economic" equality, which examines whether each apartment owner is expected to receive the same consideration in terms of its economic value.
This question is certainly a question with broad implications that go beyond the individual interest of the parties. Therefore, if the answer to this question had been necessary for the purpose of deciding the matter at hand, I would have transferred the decision in this application to the Telta panel.
However, as the District Court noted, a decision on this question is not required in our case. This is because whether the relevant test is a "substantive-quantitative" test, or whether it is an "economic" test, the examination of the violation of equality must be conducted by comparing equals and not between those who have a material difference between them. Therefore, the fact that owners of different apartments of origin are given consideration apartments with a different addition of square footage does not establish a claim of discrimination according to any of the aforementioned tests. This determination is also acceptable to me, and therefore I do not believe that the Applicant's argument justifies granting leave to appeal in a "third incarnation", in the circumstances of the case at hand." [My emphasis is L.B.].