It has not escaped the court's notice that the expert in the clarification answers of October 30,2024, confirmed in answers 1-3 that, in practice, the depreciation in the eyes of a potential buyer may be much higher. At the same time, the expert was not questioned in connection with his opinion.
The area component of the apartment
After hearing the testimonies and arguments and reviewing everything that was brought before me, including the expert opinion on behalf of the court, I am satisfied that the law of this component is rejection.
- According to the plaintiffs, the area of the apartment that was actually delivered to them is different from the area of the apartment that was agreed upon in the sale agreement. According to the plaintiffs' expert, there is a deviation of 3.48 square meters in the size of the apartment. After all, in the sale agreement it is stated that the area of the apartment is 98.18 square meters, and the area that appears in the building permit is 94.7 square meters.
Therefore, according to him, the degree of deviation exceeds the permissible deviation (2%).
The damage estimate is calculated based on an area loss of 3.48 square meters multiplied by 13,300 ILS, and the result is 46,300 ILS.
On the other hand, Shafir argues that no deficiency in the area of the apartment has been proven, and according to her, the method of measurement between licensing and the Apartment Sale Law is different. He also claims that the plaintiffs' opinion collapsed, since the expert on behalf of the plaintiffs did not measure the area of the apartment at all.
- First, the court's expert described that during the visit to the apartment, interior measurements were taken, and also noted that he was not a certified surveyor, and that the measurements taken by him were for an indicative purpose only. The expert held: "Considering the thickness of the plaster/cladding, no significant deviation was found between the interior dimensions in the building permit and the actual situation" (p. 17 of the opinion).
Later, the expert determined that it was even found that the actual measurements were slightly larger than the measurements appearing in the plan (p. 18, ibid.).
- In his conclusion, he noted that the area of the apartment was even larger by 0.455 square meters. After all, he determined that the area to which the defendant committed itself was 98.18 square meters (apartment area: main + safe room) and did not include a covered balcony. And that the area calculated according to a plan prepared for the purposes of municipal taxes, according to the same rules, is 98.635 square meters. He further added that the comparison should be made in relation to the actual measurement of the apartment, and not in relation to the building permit plan (p. 22, ibid.).
- In this context, the expert recommended that the apartment be measured according to the same rules by a certified surveyor.
In this regard, counsel Shafir is correct that the expert on behalf of the plaintiffs did not measure the area of the apartment at all, and the expert on behalf of the plaintiffs confirmed this (p. 4, paras. 2-3). Moreover, he testified that he is not a surveyor by profession (ibid., paras. 24-26).
- Ultimately, the expert on behalf of the court determined that there was no deviation in the area of the apartment, and therefore there was no depreciation (p. 28 of the opinion). Since no real evidence was presented that would contradict the opinion, I saw fit to accept the expert opinion on behalf of the court, and to determine that there is no deviation in the area of the apartment, which entitles to compensation for depreciation.
Mental anguish
- As stated above, I have adopted the expert opinion with regard to the value of the impairment with regard to the location of the parking.
- The plaintiffs petition for compensation for mental anguish, in light of the discomfort with the parking location.
On the other hand, Shafir argues that there is no reason to compensate the plaintiffs, since the plaintiffs received exactly what they signed, and therefore they did not suffer any mental anguish.
- As stated above, I have reached the conclusion that Shapir's arguments do not justify the failure to fulfill the required duty of disclosure with regard to the location of the parking lot.
- After hearing the arguments of the parties, I was satisfied with awarding compensation for mental anguish, along with the element of depreciation of the apartment.
- It should be clarified that the depreciation component is pecuniary damage, which is intended to compensate for economic damage to the value of the apartment. The mental anguish component is non-pecuniary damage, the purpose of which is to compensate, inter alia, for inconvenience and damage to the quality of life.
- In the framework of the discussion of the question of compensation for mental anguish, as well as its rate, in the context of construction defects, it was held that:
"The purpose of compensation is to place the injured party in the situation in which he would have been had the breach and the damage caused as a result had not occurred. In determining the amount of compensation for mental anguish due to construction defects, consideration will be taken, inter alia, the quality of the property in which the defects occurred - whether it is a residential apartment, a business structure or another; the nature of the defects, the degree of their severity, the extent of their impact on daily life in the apartment; the conduct of the parties before and during the legal process; the cost of repairing the defects, and more (see also: A. v. Vardi Laws of the Sale of Apartments - Construction Defects and Ensuring the Rights of Purchasers (2001) at p. 421)."