Shabbat Parashat Noach 5777

P'ninat Mishpat: Fixing Status of a Non-Standard Apartment – part II

Case: The plaintiffs (=pl) bought from the defendant (def), for 910,000 shekels, an apartment in an old building that does not have a building permit or a Tofes 4 (certificate of fitness for occupancy). It is also not connected directly to a meter of the electric and water companies (they pay through a neighbor). After pl complained to the municipality, the latter issued an order to destroy the building (it may never be acted upon). Def did not inform pl of these deficiencies but argues that pl could have easily found out themselves. Pl demand that def take action to fully legalize the apartment/building, the feasibility of which is under dispute between the sides. Alternatively, pl demand 400,000 shekels compensation. Def claims that the building’s legal status does not affect the apartments’ value. He offered pl to try to sell the apartment, and if they cannot get a price that is fit for normal apartments, def will buy it from them at full price. Def made several other offers involving buying back the apartment with certain conditions, but pl want to stay in the apartment.

Ruling: We saw last time that def did not obligate himself as part of the sale to take unusual steps to turn the sale into a more fair one.

The sides disagreed as to whether the apartment’s flaws are grounds for bitul mekach (voiding the sale). Based on the accepted ruling that bitul mekach is applicable in cases where most in society would consider it grounds, beit din is confident that pl could have voided it. Absence of a building permit and Tofes 4, even according to def’s claim that this is because the building existed pre-State, can cause major problems for owners, including condemnation of the building (as the municipality did) and make resale at full price very difficult. Def claimed that it would have been only an act of piety to inform pl of this fact. Beit din strongly rejects this and asserts that def violated the prohibition of deceiving a buyer (see Shulchan Aruch, Choshen Mishpat 228:6).

Yet, there are a few reasons to consider that pl waived their right to bitul mekach. One is that their contract states that they checked the status of the apartment and found that it met their needs. That clause could have impact by meaning that they admit that the true situation did not bother them or that they waived complaints in case there would be any. Pl responded that at the time, they were new olim and his lawyer, who was not from Yerushalayim, checked only the Tabu and did not think to check for a building permit. In this case, pl’s actions show that they were not satisfied with the situation, in which case any admission was clearly based on misinformation, which is invalid (Shulchan Aruch, CM 81:20).

Regarding waiving rights, one can only waive what he is aware of (ibid. 232:7). However, even after finding out the various issues, pl continued to live in the apartment. This usually precludes bitul mekach (ibid. 1), although some argue in cases where it would have been hard for the buyer to void the sale immediately (see Pitchei Teshuva ad loc.). However, def did not complain for many months and despite beit din’s request to raise all possible demands, did not mention the possibility of bitul mekach. Therefore, pl can no longer request bitul mekach.

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