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Judgment A. Basis of the claim Before me is a claim whose cause of action is between the seller of an apartment and its purchaser, as defined in the Sale (Apartments) Law, 5733-1973 (hereinafter: "the Sale Law"). The dispute between the parties revolves mainly around the axis of responsibility for the existence of the construction defects present in the apartment, and around the assessment of the estimate for their repair, as determined by the parties' experts on the one hand and the court-appointed expert on the other. B. Main facts and arguments of the parties 1) Between the plaintiff on the one hand and the defendant on the other, a sale agreement was made on 13/4/95 for the purchase of an apartment built by the defendant in Modiin (hereinafter, respectively: "the Agreement: the Apartment"). 2) According to the plaintiff's version, the defendant breached the provisions of the Agreement and/or the law regarding the quality of the construction, since many serious defects arose in the apartment amounting to a non-conformity as defined in the Sale Law. According to the plaintiff, relying on an engineering opinion submitted on his behalf (hereinafter: "the Arad opinion"), the estimated cost of repairing the defects amounts to a total of 120,112 ₪. The plaintiff claims that, beyond the cost of repairing the defects, he suffered, due to the breach of the Agreement and/or the negligent performance of the construction work, additional damages, including engineer's fee expenses (4,000 ₪), alternative housing (5000 ₪), inconvenience and distress (20,000 ₪). In the statement of claim filed by him on 27/1/04, the plaintiff petitioned to order the defendant to pay his damages in the amount of 149,212 ₪. 3) In response, the defendant argued in its statement of defense that although the plaintiff took possession of the apartment as early as 7/3/97, he did not complain to the defendant except regarding the issue of dampness, and that he is estopped from suing the defendant for defects beyond the dampness defects. The defendant argues that the plaintiff installed bars that damaged the waterproofing and flooring of the apartment, and that he should be held responsible for the dampness defects. 4) The defendant disputed the findings and estimates set out in the Arad opinion and argued that it built the apartment skillfully and using good materials. 5) The defendant relied on an opinion of an engineer and appraiser on its behalf (hereinafter: "the Chait opinion") who, in his lengthy and exhaustive opinion, surveyed and found that the apartment contains various defects, including waterproofing and dampness defects. Chait determined that the repairs for which the defendant is responsible relate to smoothing plaster in the main bedroom of the apartment (100 ₪) and labeling the switches on the electrical panel in the apartment (50 ₪). Beyond that, Chait documented additional defects for which the defendant's responsibility "is not proven and is not certain" and priced them at a sum of 10,415 ₪ (mainly dampness and waterproofing defects and the cost of a lower kitchen cabinet). C. The dispute 1) Determining findings regarding the defects in the apartment and responsibility for their existence. 2) The amount of the damage. D. Discussion and findings 1. The court's expert 1.1 In light of the unbridgeable gaps between the Arad opinion on the one hand and the Chait opinion on the other, the Court appointed Eng. Ilana Gutenberg Bar-Zeev as its expert (hereinafter: "the Expert"). 1.2.The Expert visited the apartment, reviewed the Arad and Chait opinions, and on 1/10/04 issued an opinion in which she determined the following findings and assessments: 1.2.1.The Expert rejected Arad's determinations regarding the defects he documented concerning the safe room (mamad). 1.2.2.The Expert found defects in plaster and paint issues and priced them at a total sum of 2650 ₪. 1.2.3. The Expert rejected Arad's determinations in the flooring and cladding item. 1.2.4. The Expert found dampness defects resulting from damage to the waterproofing of the living room balcony, and attributed the responsibility for this both to the plaintiff (damage to the waterproofing due to the installation of bars) and to the defendant (repair of faulty waterproofing beneath the display window). The Expert estimated the cost of completing the waterproofing defects, including dismantling and re-laying flooring, at a sum of 8,000 ₪, and in addition documented dampness in the wall of the service balcony due to a lack of waterproofing of a planter, and priced the cost of the repair at a sum of 1500 ₪. 1.2.5. The Expert found a defect in the window casing in the bedroom and priced the cost of the repair at a sum of 1000 ₪. 1.2.6. Regarding the item of railings and sills, the Expert determined that leveling work should also be carried out on the balcony railing at a cost of 500 ₪. 1.2.7. Regarding the plumbing item, the Expert documented a defect in an exposed drainpipe in the bedroom and priced the cost of aesthetic cladding at a sum of 1000 ₪. She also found a defect in the absence of circuit labeling in the electrical panel (cost 400 ₪). 1.2.8. The Expert found a multi-system defect in the kitchen and determined that the lower kitchen cabinet had been replaced after being damaged by dampness. The Expert priced the repair of the kitchen defect at a total sum of 15,400 ₪, including the purchase of a kitchen cabinet. The total estimate for repairing the defects, as determined by the Expert (including cleaning work), was set at a sum of 20,000 ₪ including VAT (at execution prices for the defendant) and a sum of 30,700 ₪ including VAT (cost to the plaintiff using a contractor on his behalf) In her responses dated 21/11/04 to clarification questions posed by the plaintiff, the Expert updated her opinion, adding a sum of 850 ₪ for the cost of repairing the crooked flooring line at the entrance to the apartment. 1.2.9. It is settled case law that the court will tend to confirm the determinations of an expert it appointed, unless it finds a prominent reason not to do so (compare: CA 558/96, PD 52(4) 563. 2. Compensation as opposed to remedy in kind The defendant did not raise, either in its statement of defense or in its summations, arguments regarding its right to exhaust remedies in kind. It follows that insofar as it is found that the apartment contains defects for which the defendant bears responsibility, it is obligated to compensate the plaintiffs in money, with the addition of the cost necessitated by hiring an occasional contractor. The plaintiff argued in his summations that the defendant showed contempt in responding to his requests and made do with cosmetic repairs only; these arguments, insofar as they are proven, can form a basis for determining compensation for non-pecuniary damage, and I will address this issue further below. 3. Existence of dampness defects and responsibility for their occurrence 3.1. The plaintiff's main arguments are directed at the dampness and waterproofing defects in various parts of the apartment and mainly in the kitchen, which were diagnosed by the plaintiff already at the time of handover (section 11 of the plaintiff's affidavit and his testimony at page 22 of the transcript). 3.2. In an attempt to deny this version, the defendant argued that the lease agreement (D/1), under which the plaintiff rented out his apartment during his stay abroad for about 4 years, included a declaration regarding the soundness of the apartment. I cannot accept this version. In her testimony before me, Ms. Pilo, who testified on behalf of the plaintiff, stated that severe dampness phenomena were discovered in the ceilings of the apartment she rented from Ms. Rechter, located below the plaintiffs' apartment (section 4 of her affidavit and her testimony at page 6 of the transcript). Moreover, in an opinion prepared by Eng. Guy on 24/11/97 (Appendix G to the plaintiff's affidavit), dampness stains were documented on the terrazzo surface, attributed to a wet flooring substrate (section 2.1 of the opinion), as well as dampness stains on the walls, including the kitchen wall (section 6 of the opinion). 3.3. The plaintiff argued in section 23 of his affidavit that in July 1999, on the eve of his departure for a posting abroad, the phenomenon of mildew and mold in the kitchen intensified, but the source of the dampness was not identified. The plaintiff emphasized that when he rented out the apartment "there was a smell of mold in the kitchen cabinets" (page 25 of the transcript, and also in the Expert's opinion). 3.4. As for dampness phenomena originating in the flooring substrate: The existence of this defect is evident from the very fact that the defendant, through its employees, saw fit to lift floor tiles in all the rooms in order to allow the substrate to dry, and even replaced the flooring in one of the children's rooms (sections 13-15 of the plaintiff's affidavit). Moreover, the Expert too, in her opinion and in her testimony, noted that she saw signs of dampness on the living room balcony (ibid., page 13), and emphasized that the dampness signs on the wall indicate dampness in the sand bedding of the flooring (sections 9,16 of the Expert's opinion). The Expert also testified about the absence of a separating beam between the balcony and the living room as a source of dampness flowing from the balcony into the living room (ibid., page 13). Regarding the possibility that the dampness phenomenon results from the bars installed by the plaintiff, the Expert testified that it is reasonable that the source of the dampness on the balcony also stems from the bars, and explained this by the possibility of damage to the waterproofing of the flooring caused during the insertion of the bars into the floor (pages 15,14 of the transcript). 3.5. After considering the totality of the evidence on this issue, and bearing in mind the fact that the dampness phenomena arose in the apartment already during the inspection period and progressively worsened – the defendant did not succeed in rebutting the presumption of responsibility embedded in section 4(a)(2) of the Sale Law: at the same time, the Expert's position, according to which there is a probability that the insertion of the bars also made its own contribution to the occurrence of the dampness phenomena, was not undermined before me. After weighing the dampness factors attributed to the defendant's liability, (wet bedding sand and the absence of a separating beam between the balcony and the living room), I rule that a rate of 2/3 of the damages involved in repairing the dampness defects in the apartment should be attributed to the defendant, while the plaintiff should be attributed a rate of 1/3, and accordingly a sum of -.2,666 ₪ should be deducted from the estimate amount determined by the Expert for this item. 3.6. I reject the plaintiff's argument that the entire flooring area needs to be replaced. This argument is inconsistent with the clear and consistent findings determined by the Expert. (Response to clarification question 7(1) and 8 (6). I also reject the plaintiff's argument regarding the alleged error made by the Expert in determining the area of the balcony. The fact that the entire area of the balcony is about 33 sq m does not necessarily mean that the repair is required for the whole area; the plaintiff should have cross-examined the Expert on this issue and clarified why she referred to an area of only 22 sq m (her testimony at page 14). The plaintiff's failure to cross-examine on this issue works against his interest. 4. Defects in the kitchen 4.1. As mentioned, the plaintiff argued that phenomena of mold and dampness were noticeable in the kitchen as early as July 1997. Support for this can be found in the list of defects drawn up on 7/3/97 (prior to handover), where, among other things, the need to check for a leak above the kitchen cabinets was noted (Appendix D to the plaintiff's affidavit). In my view, these facts are sufficient to determine that the defendant was required to rebut the presumption stated in section 4(a)(2) of the Sale Law. Later in his testimony, the plaintiff argued that the defendant's attempts to repair this defect amounted to removing the back of the cabinet and painting the wall behind it (section 23 of the affidavit). According to his version, even after this "repair" the phenomenon continued, and even more so, and the plaintiff was forced to dismantle the kitchen and the flooring beneath it, and also carried out, through a contractor on his behalf, plumbing repairs at the outlet point of the wastewater. (Section 35 of the affidavit). The defendants' argument that the damage to the kitchen cabinets might be attributable to poor maintenance of the drainpipe under the sink (the trap) was explicitly rejected by the Expert (page 16 of the transcript). 4.2. I found no substance in the defendant's argument that the plaintiff did not act to mitigate his damages. 5. Cost of development and relocation of residence The Expert refrained from determining in her opinion a need for the provision of engineering supervision services, and also did not determine that there is a need to vacate the apartment during the execution of the repairs. The plaintiff's attorney refrained from cross-examining the Expert on these issues, and did not address these issues within the clarification questions either. It was therefore not proven before me that there is a need for carrying out engineering supervision and/or financing evacuation costs. I therefore reject the plaintiff's claim on these items. 6. The issue of the safe room (mamad) 6.1. Regarding the safe room, the plaintiff raised two sets of arguments: the first concerns physical defects (the height of the electrical sockets and a deviation from the thickness of the acrylic plaster layer), and the second is more complex, arguing that while the specification stated that the safe room would combine two functions, being both a closet room and a safe room – the location of the closets as marked in the sale plan neutralizes the possibility of dual purpose use. 6.2. As for the physical defects – I accept the plaintiff's argument and rule that, contrary to the Expert's position, who did not correctly interpret the provisions of the Civil Defense Regulations, the thickness of the acrylic plaster in the safe room exceeds the permitted maximum of two mm (the Expert's testimony at pages 9-10), and that repairing the defect requires removing the existing plaster and applying new plaster at a total cost of 2,500 NIS (ibid., page 10). In addition the Expert approved changing the opening direction of the safe room door at a cost of 300 NIS (section 5 of the clarification responses), and repairing a void in the door's concrete frame, 200 NIS (page 10 of the transcript). 6.3. Things are different regarding the multi-purpose use of the safe room: In section 3 of the technical specification, titled description of the apartment, it was stated: "closet room/safe room." The plaintiff did not address this issue at all in his affidavit of testimony, but the Arad opinion on his behalf states: "The size of the safe room is 4.95 sq m and it serves as a closet room." And further down it states: …"since the safe room serves as a closet room, its physical boundary is reduced, leaving a floor area that is impractical. The requirement to change the dimensions of the safe room stems from the fact that in the specification the contractor undertook to supply a closet room…" 6.4. I cannot accept this argument. The mere fact that closets were drawn on the sale plan does not necessarily mean that the safe room lost its character as a security room and became a closet room (or vice versa). The possibility of dual purpose use of the safe room (a closet room in quiet times and a safe room in an emergency) is reasonable and does not amount to an undertaking to provide a separate closet room. The statutory requirement regarding a sale plan (apartment plan) relates to its preparation on a minimal scale and no more (paragraph 1.9 of the schedule to the Sale of Apartments Order (Specification Form)). The fact that the defendant drew, for illustrative purposes, the positioning of closets in the safe room does not require its use as a closet room, and certainly does not create an undertaking on the seller's part to provide a closet room. As long as the provisions of the Civil Defense Regulations were met in the safe room – (and this is not disputed) the defendant met its undertaking under section 2.3 of the specification – "In every apartment there is a protected room (safe room)." Therefore I reject the plaintiff's claim for payment of 7000 NIS for the planning and construction of a separate closet room. 7. Compensation for non-pecuniary damage 7.1. Under this head of damage, the plaintiff claimed a sum of 20,000 NIS, which he attributed to loss of enjoyment and the distress that was his lot, both because of the defects and in view of what was described as disgraceful and contemptuous treatment on the part of the defendant. 7.2. In his affidavit, as well as in his testimony, the plaintiff described the suffering caused to him and his family as a result of the defects and mainly the dampness defects (section 13 of the affidavit and his testimony at page 22), as well as the defendant's alienating attitude toward him. 7.3. The defendant's witness Shachar Davidi, who did not work for the defendant during the relevant period, had difficulty providing a contradicting version, both regarding the plaintiff's claims about the severity of the defects and regarding the defendant's flawed approach to its duty to repair the defects, and most of his testimony is in the nature of hearsay evidence. 7.4. The case law has noted the severe impact of dampness defects in an apartment as a basis for awarding compensation for non-pecuniary damages in a realistic sum (compare CA 611/89 Drucker Zecharia v. Nechmias PD 46(2) 60). This circumstance and the proven fact regarding the depth of the defects, the considerable time required to repair them and the inconvenience caused and expected to the plaintiff and his family, justify awarding compensation in a practical sum for non-pecuniary damage; however, in the circumstances of the case, since the Expert determined that the plaintiff too bears responsibility for their occurrence – they should be reduced and set at 15,000 NIS. Conclusion I accept the plaintiff's claim in part and order the defendant to pay the plaintiff the following sums: The sum determined in the Expert's opinion, less 2,666 ₪, plus a sum of 850 ₪ plus VAT, per the cost alternative to the plaintiff (including VAT) – 28,883 NIS Additions for repairing defects in the safe room, as detailed in section 6.2 above – 3,000 NIS Compensation for non-pecuniary damage – 15,000 NIS Total – 46,883 NIS The above sum shall be paid together with linkage differentials and interest as required by law from the date of filing the claim until the date of actual payment. In light of the result I have reached, I order the defendant to pay the plaintiff court costs in the sum of 3,000 NIS and attorney's fees in the sum of 7,000 NIS. Given today, the 16th of Iyar, 5766 (May 14, 2006), in the absence of the parties
Transcriber: Sigal R. | |||||||||||||||||||||||||||||||||||||
The engineers of Arad Bedek Bayit, led by building engineer Ron Arad, whom courts appoint as their own expert on construction defects. The company has been inspecting apartments and buildings since 2001. Engineer Ron Arad · More about the company