Civil Case (Tel Aviv) 25510-11-24 Cohen Naftali v. Israel Hazemi - part 34

Prior to my decision on this issue, I find it necessary to preface and clarify thatin the Eisen case, I determined that in principle it is possible to grant different considerations to different apartment owners and that equality must be examined with regard to the group of equals.  At the same time, it should be clarified that in addition to the equality between the members of each group, it is clear that equality must also be examined in the level of relations between the groups - that is, in my view, the very fact that there is no discrimination vis-à-vis the group of equals, does not negate the obligation to examine whether the distinction in consideration between the various groups is justified.  Thus, and for the sake of example, I do not believe that in the present case, the fact that all the small apartments receive the same additional area, as well as the large apartments, is sufficient to lead to the conclusion of the discussion on the question of whether the equality between the apartment owners has been violated, but in the appropriate cases - we must further examine - whether the distinction between the groups justifies a gap between the considerations given to them.  That is, whether there is a correspondence between the difference in the characteristics of the groups and the difference in considerations between the groups.  In the present case, the difference between the groups stems from two interrelated aspects - first, the actual area of the apartments is different - so the small apartments are apartments whose area according to the permit is about 68 square meters, while the large apartments are apartments whose area according to the permit is 96.3 square meters, and secondly - from the fact that the gap in the areas is a result of the fact that the small apartments did not realize rights for additional construction, and in light of this, these apartments have on the face of it unused rights that have already been exploited by the large apartments.  These are the differences between the characteristics of the groups.  As a result of these differences, different considerations were granted to the groups - so that taking into account the area of origin, the small apartments are granted apartments with an additional area of 10 square meters (they receive a consideration apartment with an area of 78 square meters), while the large apartments are granted apartments with an additional area of 1.7 square meters (since their owners receive a consideration apartment with an area of 98 square meters).  The question that arises from this is whether the difference between the groups justifies the difference in considerations, and more specifically whether the existing building rights in favor of the small apartments justify a higher consideration than what was offered to them.