dr haim katz 88224.
(photo credit: )
You buy an apartment from people who inherited it. You're careful, you verify in the land registry whether, indeed, they are recognized as the heirs to the previous owners' of this property and you are pleased to see in the land registry extract (nesach) the names of all your sellers, including the notice that they received this property by inheritance.
Now, certain that this property is theirs to sell, you transfer most of the money, as is usual, well before registration. Your sense of security is not impaired when you hear from one of the heirs, that an "unknown cousin has come from abroad, and with him a more recent will." After all, you have an official deed and a court order behind it.
Well, the legal ground is about to shake under your feet.
If the following story seems to you to be straight out of an O Henry piece, just remember that the imagination is outstripped only by real life.
Benjamin, who was very close to his Uncle Max, was told over the last years of Max's life time and time again, "Don't worry. Benjamin, I know you like my house in Israel and I promise I will bequeath it to you, when the time comes." Benjamin was always gratified to hear this from his uncle, as the villa, a Bauhaus-style mansion in Herzliya Pituah with an unobstructed view of the Mediterranean, was an exceptional architectural masterpiece - and worth millions.
When Uncle Max passed away, the family gathered at his lawyer's office, opened the wax-sealed envelope, and drew out the will that had been duly signed in that very office five years earlier. To his astonishment, contrary to his uncle's verbal promises the will left all of Max's possessions, without exception, to his ex-wife.
Benjamin had the will examined by his own lawyers, but was categorically informed it would a be a waste of time and significant money to challenge the will. Disappointed, Benjamin put the matter out of his mind.
Some time later, Benjamin had a chance encounter with an old friend of his Uncle Max, who told him: "You know, your uncle, weeks before he passed away, left some books with me. They don't seem to be worth much but you may want them as a memento." Benjamin thanked the man and promptly forgot, but some months later was driving by the friend's home, recalled the conversation and took the small pile with him.
After collecting the books, Benjamin flipped through them finding no interest in them at all, certainly not the German ones. Taking them to a book seller on Allenby Street, he was informed they were worthless, but he may leave them in the store nonetheless, which he did.
The bookseller noted, while Benjamin was still in the store, a hand-written sheet of paper protruding from one of the books. He pulled it out and asked Benjamin, "Did you want this?" To Benjamin's utter amazement, he found himself gazing at a sheet written, dated and signed by his Uncle Max from some weeks before his death leaving the villa in Herzliya Pituah solely to him.
Under Israeli law, a handwritten will does not require witnesses - and is completely valid - as long as it is written, signed and dated by the maker of the will.
Benjamin's attorneys immediately submitted this will to the courts, demanding that the previous will be rescinded in regards to the property in Herzliya Pituah.
The ex-wife put up stiff resistance, calling on lawyers of her own, at first stating that the will was not written by Max at all and that even if it had been, too much time had elapsed and that it was too late to present such a will to the court.
But after the court heard graphologists and document experts, the judge declared that he was satisfied that indeed the document was an authentic, later will. Furthermore, the court declared that Benjamin had acted as expeditiously as he could and had brought the will before the court as soon as he knew found out about its existence. Most important of all, the court as probated the newer document in the previous will's stead.
However, when the attorneys attempted to register the court decision in the land registry under Benjamin's name, they had no choice but to inform him that the villa had been sold and was now owned by a foreign embassy.
"But that's my house" wailed Benjamin. "These people have bought the property from the ex-wife who did not legally own it." The lawyers pointed out to him that it was simply too late. The property was now registered in the buyer's name and the law protects buyers who have obtained registration of property in good faith.
But what if the foreign embassy had merely signed a purchase contract with the ex-wife and the new will had appeared prior to actual registration? A decision by the Supreme Court has ruled that in such a case the sale will be cancelled and in the case above Benjamin would have received the house in Herzliya as his uncle's lawful heir.
The moral of the story: When buying from a seller who had inherited a property, have the payments kept by the lawyers in trust or escrow, and make transfer of the payment to the seller conditional upon the definite registration of the property in your name. Only then you can rest assure that the property is truly yours.
The author is a senor partner with the Abraham Neeman Law Offices, one of the largest real estate law firms in Israel.
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