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Shabbat Parashat Noach 5780

P'ninat Mishpat: Deceptive Developer

(based on ruling 76058 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The defendant (=def) is a developer who built apartments on land that he owned for the plaintiffs (=pl), a group of 16 households who bought apartments. Pl presented a list of repairs that def did not fix during the allotted time. Also, def promised that each buyer would receive a parking spot in front of the building, but it turns out that the only spots being provided are open to the public. Def accepted the legitimacy of the list of repairs (in what turned into a partial ruling of beit din) and took upon himself to fix them within 30 days. However, many of the elements were not fixed even long after the 30 days. Regarding the parking spots, pl says that zoning laws prevent them from making private parking places.

 

Ruling: The Beit Yosef (Choshen Mishpat 14) says that the defendant must pay all the expenses that are accrued in compelling him to carry out the ruling against him. Since an engineer estimated the price of carrying out the repairs at 41,965 shekels, def will have to pay pl this sum, and the residents will hire a person of their choice to carry it out. They need not wait any longer for def to do what he was required to and failed to do.  

The claim that the zoning laws do not allow private parking places is largely irrelevant. In the purchase contract, it is mentioned in two places that each apartment would have a parking spot (and their details are even specified). Therefore, if it is indeed against zoning laws, then def intentionally misled pl and sold them something that def did not own. The result is that since a parking place has a value and is included in the price of a property, that part of the apartment price was based on a fraud. Def’s apologetics about the meaning of these provisions in the contract are implausible.

Beit din hired an engineer to see if there is a way of building a parking area within the property, but he found that it is not a practical option. Beit din hired an appraiser to determine the price of a parking place for a building of this level and location. He determined it is 4,000 shekels a piece. Pl questioned how it could be so low and requested to have the expert’s credentials checked. Beit din reviewed his credentials and found that they are fine, and asked of the expert to carefully explain his rationale. It turns out that the price of a parking place on the street in front of the building (which is what was promised) depends on the availability of parking in the area. In this area, there is good availability, and the appraiser used publicly approved guidelines. He claimed that the range of opinions would be around 10% above or below 4,000 shekels. Appraisal of land is classically done by three experts (Shulchan Aruch, CM 103:1-3). However, the price of hiring such experts would exceed the possible savings/earnings of either side. Therefore, beit din will exercise its authority to rule based on compromise when it is for the welfare of the litigants and follow what the one expert appraiser presented. 

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