On behalf of Shapir, the following testified: Mr. Ariel Kotok (hereinafter: "Kotok"), who is a sales manager at "Neve Ha'ir", an external company that marketed the project for Shafir, and he was the sales manager for the complex; Mr. Hagai Danino (hereinafter: "Architect Danino"), who was an architect on behalf of Shafir in the project; Mr. Elad Nikha (hereinafter: "Nikaha"), Director of Operations and Customer Service at Shapir; Mr. Moti Maaravi, Economist and Real Estate Appraiser (hereinafter: "Shaffir Expert").
In summary of the plaintiffs' arguments:
- The parking component - In clause 1 of Appendix A to the sale agreement, it is written that the apartment will have parking number 45 above, and a parking plan was attached to the agreement. From the drawing, any reasonable person will understand that the parking is adjacent to the building. The agreement was signed "on paper", before it was possible to get an impression of the situation on the ground. Moreover, the parking lot was defined as 45 Elite, and this does not imply that this is a building located on a lower level than the parking lot of Building 18.
- In order to get to the parking lot, the plaintiffs must leave their yard and go to Building 17. This is a 35-meter walk down a steep slope, and a 12-step descent. On the other hand, the rest of the neighbors leave the building's lobby from the elevator directly to the car. Also, the parking lot is located next to garbage and recycling bins, from which a foul smell is emitted.
- The plaintiffs quickly signed hundreds of pages, and there was no chance of understanding from the sketch that it was a parking lot far from the building.
- The plaintiffs were deliberately or negligently misled into thinking that it was regular parking. No one bothered to tell them that it was a parking lot located in another building. It was one defective parking lot out of 1,519 apartments.
- There is no substance in the testimonies on Shafir's behalf, and the testimony of the plaintiffs' committees was not contradicted.
- The area component of the apartment - in the appendix to the agreement, on the specification page of the apartments areas, it is written under the title "Temporary specifications subject to changes after receiving the final permit". The apartment brochure states that the area of the apartment is 98.18 square meters. Any reasonable person understands that a building permit will be submitted on an area of 98.18 square meters and not on 94 square meters. Therefore, the difference in the area of the apartment must be compensated in the sum of 4,6, 300 NIS.
The agreement should be interpreted against the drafter, since according to the agreement, a building permit will be submitted for 98.18 square meters.
- Mental anguish - The plaintiffs suffered severe mental anguish, they came to receive, as they defined it: a "dream apartment", and instead received an apartment with a serious defect.
In summary of Shapir's arguments
- The area component of the apartment - no lack of space in the apartment was proven, and the plaintiffs' opinion collapsed, since the expert on behalf of the plaintiffs did not measure the area of the apartment at all.
The court's expert rejected the claim of a difference in the area of the apartment, and this determination should be adopted.
- The parking component - the plaintiffs signed in the sale plan, in which the parking was specified. Signing the sketch constitutes constructive knowledge of its contents. Moreover, the plaintiffs were represented by an attorney at the time of signing the sale agreement.
- It should be emphasized that the plaintiff was not the living spirit in signing the agreement, but her husband, but the latter chose not to testify.
- The plaintiffs chose not to check the drawings and/or plans with a professional, before entering into the sale agreement, and they have nothing to complain about, but about themselves.
- The plaintiffs never claimed that the parking that was given to them was not the parking that was sold to them. Their entire argument revolves around the approach of comparison, according to which the rest of the building's tenants received parking spaces that they claimed were "better" than the parking lot they purchased, and therefore they should be compensated. This is an argument that arises at most erroneously in the feasibility of the transaction.
- Beyond the aforesaid, in accordance with clause 22.4 of the sale agreement, it was agreed, inter alia, that Shapir would not be bound by any representation, declaration or undertaking made prior to the signing of the agreement.
- The element of mental anguish - the plaintiffs received exactly what was sold to them, and exactly the parking lot that they signed in the drawings, and therefore they did not suffer mental anguish.
- As to the expenses - the extreme difference between the sum of ILS 14,0, 00, which was claimed, and the maximum evidentiary basis determined by the expert - NIS1,7, 00 in respect of the parking component, justifies awarding realistic expenses and fees in favor of Shafir.
Summary of Answer Summaries
- Not a single example of an apartment located in another yard was brought, as part of a project of 19,500 apartments.
- The plaintiffs declared and proved (Appendix F) that they did not receive the sketch before signing the agreement, and that it was signed at lightning speed, and at the time of signing they were without legal representation.
- The claim that a young couple should take an architect to sign the agreement to make sure they are not "stung" is outrageous.
- This is a draconian and discriminatory condition in a uniform agreement, which legitimizes bad faith.
Discussion and Decision