As stated at the outset, the court will be required to clarify whether Shapir did not act as expected of it, as a contracting company, and is therefore entitled to compensation regarding the location of the parking lot and the area of the apartment;
As stated, after examining the claims, hearing the testimonies, reviewing the evidence and everything that was brought before me, including the expert opinion on behalf of the court, I am satisfied to reject the claim regarding the depreciation in respect of the area of the apartment, and to accept the claim in part regarding the depreciation regarding the location of the parking lot, and I will clarify;
- As stated, an expert was appointed by the court who examined the arguments in his field of expertise. It should be noted that a decision in disputes involving construction requires a professional, external and objective examination by an expert appointed by the court, who is a neutral expert who has no interest in the outcome of the dispute between the parties. The court's expert opinion enjoys a special status.
- With regard to the adoption of the court's expert opinion, the Supreme Court held:
"Unfortunately, construction projects give rise to disputes and litigation in the context of construction defects and non-fulfillment of the mutual obligations of all parties involved. The time has come for all parties involved to understand that there is an end to all this, in the opinion of an expert appointed by the court with the consent of the parties' counsel. It is reasonable to assume that none of the parties comes out - in such cases - with all their desires in their hands. However, each party must understand that once a neutral expert opinion has been received, which constitutes a serious attempt to deal with the many professional problems brought before him, it must be accepted, even if not all that is determined in it is to the liking and spirit of all parties, and even if it is possible to point out mistakes or possibilities of other determinations on these or other issues." (Civil Appeal 2934/94 Solel Boneh Ltd. v. Eitan (June 2,1996) (published in Nevo)).
- A perusal of the opinion that was placed before me shows that this is a thorough opinion, which includes explanations. On the face of it, it does not appear that there are exceptional circumstances that would justify a deviation from his determinations. In light of the aforesaid, in view of my impression of the quality of the opinion, and taking into account the precedent according to which as a rule, the court will adopt the opinion of an expert appointed by it as an independent expert (Civil Appeal 293/88 Yitzhak Neiman Company for Rent Ltd. Monti Rabi (December 31,1988) [published in Nevo]), I adopt the findings of the court's expert opinion, as will be explained below.
- 00In any event, there is no dispute that the plaintiffs signed the sale agreement, but there is a dispute as to what was presented and explained to them prior to the signing of the agreement.
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- In addition, at the level of expertise, it is necessary to examine whether there is a gap in the area of the apartment, and whether there is a decrease in value regarding the location of the parking that the plaintiffs received in practice.
- First, there are basic concepts that there is an increased duty of disclosure by a contractor towards an apartment buyer "on paper".
A contracting company that sells an apartment to a buyer "on paper" is subject to an increased duty of disclosure, which derives its force from the principle of good faith in negotiations, in accordance with section 12(a) of the Contracts (General Part) Law, 5733-1973 (hereinafter: the "Contracts Law").
- In this context, what was said in Civil Appeal 2274-21 Neta Mor v. Elad Israel Residences Ltd. (published on 01.01.2023) is appropriate:
"At the outset, I will present the bottom line of my judgment: the appeal must be accepted. This is because the respondents breached the increased duty of disclosure that they owed to the appellant, as someone who sold her an apartment "on paper", as part of their general duty to act with the appellant, and with all the apartment purchasers in the project, "in good faith and in an acceptable manner" - as required by section 12(a) of the Contracts (General Part) Law, 5733-1973 (hereinafter: the Contracts (General Part) Law). This duty of disclosure adds to the disclosure obligations that the seller of an apartment owes to its purchaser under sections 2 and 3 of the Sale Law (Apartments), 5733-1973 (hereinafter: the Apartment Sale Law) - as has already been established in our case law (see: Civil Appeal 7298/00 Best v. Hamami, paragraph 47 [published in Nevo] (September 4,2007) (hereinafter: the Best case)). The breach in which the respondents failed in their relationship with the appellant was expressed in a lack of proper disclosure with respect to the blockage, which concealed the problem of the blockage from the appellant's eyes. As a result, the appellant purchased her apartment in the building - apartment 1044 - without awareness of the obstruction problem."
- In other words, the seller of an apartment has a duty of disclosure, both by virtue of section 12 of the Contracts Law and by virtue of section 16 of the Sale (Apartments) Law, 5733-1973, according to which he is required to detail to the buyer the defects that exist in the apartment, including the hidden defects, as well as any essential and material information for the transaction.
- Needless to say, this obligation stems from the power disparities that exist in practice, between the contractor who holds all the planning information, and the apartment buyer, who usually does not have real professional knowledge.
- The rationale behind this obligation is to ensure that the contractor provides the apartment buyer with all the material details regarding the potential apartment, and the apartment buyer will make an informed decision based on the material presented to him, whether to purchase the proposed apartment or not, based on the data given to him by the contractor.
- I am of the opinion that there is no doubt that providing details about the location of parking and its limitations are essential details in an apartment sale transaction.
- The questioner asks when the plaintiffs were presented with the parking drawing, and whether the sketch that was presented to them is sufficient.
The parking component