Defects in common property: a developer that repaired poorly for years lost its right to repair

The representative committee of an apartment building in Haifa sued the developer over construction defects in the common property, and the developer asked to repair them itself. The court held that the developer had exhausted its right to repair and ordered it to pay the committee ILS 254,030, based on the court-appointed expert's estimate.

What happened

Residents moved into the building in November 2019, and construction defects in the common property soon appeared. The building's representative committee hired an engineer, whose report from April 2020 was passed straight to the developer. In September 2020 a meeting was held, at which the committee confirmed on the report itself that much of the defects had been fixed or did not need fixing.

According to the committee, the repairs were partial and unprofessional, and many written and verbal requests went unanswered for almost four years. In 2023 it commissioned two further reports: a follow-up inspection by the engineer and a report by a waterproofing expert. They found that many defects remained even after the repairs. The lawsuit was filed in late 2023, for ILS 813,033.

The parties' arguments

The committee argued that the developer had been given many chances to repair and had failed, so it no longer trusted the developer or its ability to do the work properly. It added that the developer could not deny the defects on the one hand and demand to repair them on the other.

The developer said it had taken the requests seriously, and that the 2023 reports were never given to it before the lawsuit, so it had no chance to examine and fix what they described. In its view, some defects were new and their warranty period had already expired. It relied on section 4B(a) of the Sale (Apartments) Law, which requires the buyer to give the seller a fair opportunity to repair, and on the sale contracts, which gave it a first right to repair and up to three further attempts when a repair failed. It also argued that repair in kind was the most efficient and cheapest solution.

The court appointed an engineer as its own expert. He found that significant defects remained and estimated the cost of repairing them at ILS 254,030 including VAT. The parties then reached a procedural agreement: the court would decide only whether the developer was entitled to carry out the repairs itself, and if not, the committee would be awarded the amount in the expert's report.

The decision: the right to repair was exhausted

The court explained that the duty to give the seller a chance to repair depends on the circumstances of each case. Where the seller was given a chance and repaired partially, slowly or poorly, the buyers cannot be forced to give it chance after chance. The same applies where the seller denies the defects, where a long time has passed since handover without repairs, or where the buyers have lost trust in the seller. In such cases compensation is calculated at the price of an outside contractor. These principles also apply to defects in common property, and the burden of showing that no fair opportunity was given lies on the seller.

Here, the developer received the first report, examined it and carried out repairs. No one claimed the committee prevented it from working or set conditions; on the contrary, it cooperated. So a fair opportunity had been given. The court also weighed the unanswered requests, the long period from 2019 to 2023, the loss of trust, the expert's findings, and the fact that the developer's defense stated that there were no defects in the building at all. The developer explained that it meant only to dispute the scope of the claim, but the court held that what was written in the defense could not be ignored, and counted it against the developer.

Two further arguments were also rejected:

• New defects: the developer must point specifically to which defect is genuinely new, as opposed to one that was not fixed, came back, got worse or resulted from a failed repair. A general claim is not enough to restore its right to repair all the defects.
• Three repeat repairs: under section 7A(a) of the Sale (Apartments) Law, its provisions can only be varied in the buyer's favor. A contract clause giving the developer three more attempts, regardless of whether it already had a fair opportunity, does not sit well with the law.

The court added that refusing further chances also avoids long future disputes over the quality of the work.

The outcome

Under the procedural agreement, the developer was ordered to pay the committee ILS 254,030, plus linkage differentials and interest from 15.10.2025, the date the expert's report was prepared, until actual payment. Because of the gap between the amount awarded and the amount claimed, the committee was awarded partial costs of ILS 30,000. The amounts are to be paid within 30 days. The judgment was given by a Magistrates' Court and can be appealed.

This article summarizes a published Israeli court decision in plain language and is not legal advice. Every case depends on its facts. The parties' names have been omitted. This is a first-instance decision and may be appealed.