Construction defects in an apartment in a TAMA 38 project: what the judgment held

What happened in the case?

In 2015 the client bought a new apartment in a TAMA 38 project in Ramat Gan, and the apartment was delivered in 2017. There were known defects already at delivery, and later waterproofing failures, damp on the balconies and the roof, and even a leak into the apartment below came to light. From 2018 the developer repeatedly put off the repairs.

We filed a claim for a mandatory injunction and compensation, together with an engineering report. Even before a statement of defence was filed, the parties reached an agreement that was given the force of a judgment.

What did the judgment provide?

• The developer repairs all the defects in accordance with the report, including the leak into the neighbour's apartment, and restores everything to its previous condition: flooring, plaster, paint, furniture and the roof garden.
• An engineer is appointed by the court: he determines the method of repair, supervises the works and approves them.
• The warranty period is as provided by the Sale (Apartments) Law, and in any event not less than three winters from the day the court-appointed engineer approved the repair.
• The developer bears the cost of the court-appointed engineer, the gardener and the repairs, and pays compensation of NIS 20,000.
• The court fee was refunded to the claimant.

Why "three winters"?

A waterproofing failure shows itself in the rain. A repair that looks sound in summer can fail in the first winter. We therefore agreed that the warranty would last at least three winters from the court-appointed engineer's approval, and not only according to the general count from delivery. That is a real test of the repair.

Who is responsible in a TAMA 38 project?

Whoever sold you the new apartment is the "seller" under the Sale (Apartments) Law, even if the construction was in fact carried out by another contractor. That is the party you approach with a demand for repair, and the party you sue. In TAMA 38 projects it is also important to check which entity signed the contract and what its financial position is.

Why is it worth having an engineer supervise the repair?

When the contractor repairs without supervision, the buyer does not know whether the repair has been done properly, and the dispute simply returns the following winter. An engineer who determines the method of repair and approves it at the end closes the matter and prevents arguments about the quality of the work.

When should you consult a lawyer?

Bought a new apartment and the developer will not carry out repairs? Send us the handover protocol and photographs of the defects.

To arrange a call: 052-5927592, or on WhatsApp using the button on the website.

About the author

Amos Ilan is an advocate (Israel Bar no. 35320) and a notary (licence no. 214444). The office is at 17 Tzahal Street, Ness Ziona, and handles real estate transactions, construction defects, condominium disputes and civil litigation.