Adv. Dan Halpert, globes.co.il
The TAMA 38 agreement, among other things, regulates the schedules for the parties' commitments. The developer undertakes to carry out the planning procedures (permit issuance) within a certain period, and also undertakes to complete the construction within a short period of time. It is customary to allow the developer to extend the construction work period in cases where work is done. Construction is delayed due to events beyond his control, such as a state of war, curfew or lack of building materials called "force majeure." It is also customary to apply the provisions of the Sales Law (Dwellings), which stipulates a 60-day allowed delay and above, obliges the developer to pay the owner financial compensation.
Among other arrangements between the parties in the Tama 38 transaction, the developer allows the apartment owners to make changes to the new apartments, ie to order from the contractor making changes / improvements / accessories to the apartment. In this case, the developer wants to include in the TPA agreement a provision stating that the delivery date will be allowed to make the improvements. Invited. Is this entrepreneur's position proper and correct?
This issue was recently discussed in the Hadera Magistrate's Court as part of a lawsuit filed by an acquirer against an entrepreneurial company, in which the acquirer claimed that the apartment was delivered to him late and therefore the entrepreneurial company should be paid compensation.
The controversy: Is the renovation worth rejection
On December 3, 2013, the purchaser signed an agreement to purchase an apartment in the "Calil Horesh neighborhood (landscape apartments)" project in Pardes Hanna-Karkur, and the date of delivery of the apartment was set for December 31, 2015. The apartment was delivered to the buyer only on March 30, 2016, that is, three months after the date stated in the agreement.
In June 2014, a change agreement was signed between the buyer and the contracting contractor. The change agreement did not specify the changes ordered by the buyer and stated that the buyer confirms that, due to the requested changes, the completion of the apartment will be delayed and the delivery date fixed in the sales contract will be delayed by 12 weeks beyond the permitted periods of the sale contract, and it is stated that the buyer agrees that he will not be entitled to compensation.
The suit filed by the buyer alleges, among other things, that the changes he sought to make in the apartment were minor and amounted to the installation of various models of bath, sink and toilet without sliding or breaking of walls. Therefore, the purchaser argued, there was no reason to postpone the delivery date of the apartment, and if the deadline was nevertheless rejected, the developer should compensate him for the delay in delivery.
On the other hand, the entrepreneurial company claimed that in section 15.8 of the purchase agreement it was stipulated that a delay of up to 60 days in the delivery of the apartment will not be considered a breach of contract and will not involve compensation, and in the change agreement the buyer confirmed that the date of delivery of the apartment will be delayed by 12 weeks (84 days) beyond the agreed rejection period. In the purchase agreement. In light of the foregoing, the entrepreneurial company claimed, there was no delay in the delivery imposing on the entrepreneurial company to pay the buyer some compensation.
Decision: The developer must pay compensation
The court accepted the claim and held that Section 5A of the Sales Law (Dwellings) was intended to protect the purchaser by establishing a (non-conditional) cognitive arrangement for compensation for an exception beyond the 60-day period.
It has further been determined that the date of delivery of the apartment, once it is kosher and prepared for residence, is one of the most critical data for the buyer. Delay in obtaining the apartment can leave the buyer without a housing solution, cause him economic damage and leave him in distress.
It was further held that, in accordance with the Supreme Court's rule (solar law), the parties must agree on a new delivery date, in light of the request of apartment buyers to make changes, i.e. "updating" the delivery date in accordance with the requested changes, and using the changes request as a pretext for granting exemption to the contractor. From the duty of compensation imposed upon him by law.
The court further held that when the contract of sale provides for a broad provision that allows the contractor to postpone the delivery date without setting a new and clear delivery date, then it is a stipulated and prohibited exemption. It must be ensured that the date set for making the change is proportionate to the extent of the requested change.
It was held that the entrepreneurial company did not show that the minor changes requested by the purchaser warranted any rejection at the agreed delivery date. The rejection period stipulated in the 12-week change agreement is a period that does not meet any reasonable and reasonable time required for the changes to be made and therefore it must be stated that the postponement of the delivery date set in the change agreement is intended to give the entrepreneurial company the exemption from exemption. At the time stipulated in the agreement, which is unlawful and not according to the degree of fairness.
58798-02-19 Blue et al. V. Aura Israel Ltd.