The author is a partner in the office of Minzer-Carmon, Nissim, which specializes in representing apartment owners in urban renewal.
Is a 36 sqm apartment in an old building almost equal in value to a 57 sqm apartment in a new building? This question has recently come to court.
Facts of the case: Nine apartment owners out of 11 in the building at 9 Radak St. in Ramat Gan signed an agreement for the implementation of TMA 38/2 (demolition and construction), in which it was stipulated that the old building would be demolished and a new one built under it. At present, the apartments will be expanded by an average of three square meters and will enjoy the addition of a balcony with an area of about 6 square meters and underground parking.
The local planning and construction committee determined that apartments smaller than 50 square meters will not be approved. In light of this, it was determined that the owner of the ground floor apartment with an area of about 36 square meters will receive a new apartment with an area of 57 square meters Although this apartment received the most significant increase in the project, the owner of the opposing apartment argued that the TMA agreement should not be enforced against her, mainly, for the following reasons: change of location of her apartment from ground floor to apartment on the second floor; The value of the value apartment is much lower than the value of its existing apartment; The implementation of the project is not economically viable for the apartment owners and therefore the agreement should not be enforced: because the increase in the value of the refusing apartment is significantly lower than the increase in the value of the other apartments.
Supervisor’s PSD: The Supervisor appointed an appraiser on her behalf to examine the said allegations of the refuser. In his opinion, the appraiser determined that the project lacked economic viability for the apartment owners and the apartment was improved by a negligible amount of only NIS 17,000 – even though its area increased by more than 20 square meters and added parking and a balcony, while other owners’ apartments were improved by an average of NIS 167,909. This fact is in complete contradiction to the appraiser’s claim that the project is not economical for the owner. Shekel, the difference between the improvement of the refusing apartment and the other owner-occupied apartments.
Judgment on appeal: Both parties, the owner and the tenant, filed an appeal. The refuser claimed that the compensation was too low and that she could not be forced to agree to the location of her apartment on the second floor. The owners argued that the TMA agreement should be enforced without any compensation on their part.
The district court accepted the owner’s appeal and rejected the refusal ‘appeal. In the Nissani judgment (13039-12-20 Nissani v. Haviv). The value of the original apartment, whether it is renovated or larger, is not relevant to the developer and the relationship between the developer and the apartment owners. Does each of the apartments “receive an addition of areas that are similar in nature”.
Second, the court held that the Superintendent erred in adopting the appraiser’s opinion on her behalf, even though the appellate court would rarely intervene in factual findings.
Interpretation: It seems to me that it was not at all necessary to appoint an appraiser in the case in question or in similar cases, since the Supervisor can decide whether the quantitative consideration is the same and equal without the assistance of an appraiser. It is good that the district court corrected things in a proper and correct PSD that balanced the distortion created by the Superintendent of Appraisers.
ISA 14413-02-22