By JERUSALEM POST STAFFHeritage House 88 224(photo credit: Eyal Izhar)
It was a cold winter night in Haifa; the cold front was sweeping in over the waves, crashing the winds and pelting the rain into the Carmel. A good night to be home.
A visitor to an upscale modern building drove in and parked his car in a marked space adjoining the retaining wall. Residents looking out through the panoramic windows testified later that as they were looking at the sea and the torrential rains they heard an enormous clap of thunder. The visitor that parked his car had just entered the building and looking back saw an avalanche of stones and rubble burying his car. The entire six meter retaining wall had collapsed under the pressure of the accumulated water.
A few days later the avalanche came back to haunt the building. The va'ad habayit (house committee) convened an emergency general meeting. A letter had come for the va'ad from a lawyer's office. It contained a lawsuit, from the car owners.
"They want our building to pay them NIS 60,000 for the car that was crushed by the wall," it was proclaimed in the meeting. "It turns out that the wall blocked a rainwater runoff pipe, and the water accumulated behind the wall. Remember the intensity of that storm?"
No-one could make heads or tails of the legal situation.
"Is it our wall? I should think it's the city's wall."
"Is it our responsibility?
I should think the contractor who built is responsible, and the engineer who okayed the plans, and the one who oversaw the construction."
The case came to court.
"I didn't know you could sue a va'ad."
"We're going to raise that in court. We'll claim that the va'ad is not what they call 'a legal entity' and try to have it tossed out."
When the lawsuit was filed, the va'ad was defendant number 1 with its insurer. The justification for suing the va'ad was based on the claim that it was a legal entity and that it was the owner of the wall that collapsed - the wall being shared property of all the tenants. The va'ad was accused of negligence for not conducting itself as a responsible owner of a wall, for not warning the users of the road below of the danger of the wall collapsing, and for not overseeing construction of the wall creating a hazard for users of the road below.
"Overseeing construction? They haven't got a leg to stand on. The court is going to throw it out," said the chairman of the va'ad.
But his confidence was premature, and perhaps ill advised.
The va'ad then proceeded to serve a third party notice demanding that the contractor be included as a defendant in the case.
The contractor's insurer "explained" that the contractor's insurance did not cover this case. As the contractor was a virtually defunct company, the va'ad was left to battle it alone.
"But how? Do we know anything about building walls? You hire a contractor, he has a license, you assume he's going to do the work right! Where was the city, aren't they supposed to supervise what the contractor does?", the va'ad asked.
The court held the va'ad responsible, determining that it is indeed an independent legal entity and the owner of the property, as well as, the owner of the wall and the parking area into which it collapsed. Property owners (and not the city) are legally responsible for damage caused by events in their property. The court determined that the va'ad was to pay NIS 61,370 for the damage to the car and an additional, generous sum of NIS 12,324 in legal expenses.
Some of the va'adei batim do not take out insurance for their building and its surrounding areas. In the past it was difficult to sue va'adei batim as they were not considered legal entities.
The case before us proves that the va'ad has to take reasonable precautions as it is deemed to have ownership rights over the common property which include stairways, roofs, elevators and of course, retaining walls. A va'ad that does not maintain the property and, worse, does not take out insurance is grossly negligent.
israelaw@netvision.net.law Dr. Haim Katz is a senior partner with the Abraham Neeman Law Offices, one of the largest real estate law firms in Israel.
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