The Tel Aviv–Yafo District Court dismissed a claim brought by a woman who had lived in an apartment in Ramat Gan for more than sixty years and sought recognition as the apartment’s owner, a protected tenant, or the holder of an irrevocable license to reside there. The Court held that she had failed to rebut the registered ownership, had not established an irrevocable right of residence, and had advanced arguments inconsistent with the position she had taken in earlier legal proceedings.
Case details: H.P. 4424-11-17, Gershonovitz et al. v. Shemesh et al. | Tel Aviv–Yafo District Court | Hon. Judge Naftali Shilo | June 24, 2019 | The respondents were represented by Adv. David Sofer and Adv. Irit Hadar.
Background to the Dispute
Shoshana Gershonovitz immigrated to Israel from Iraq in 1951 with her parents and brother when she was one month old. After a period in a transit camp, the family moved in 1952 to an apartment on HaRo’eh Street in Ramat Gan.
Gershonovitz continued to live in the apartment over the years, including after marrying, raising a family and later divorcing. According to her, she bore expenses associated with maintaining the apartment and invested in its upkeep and renovation.
The apartment, however, was never registered in her parents’ names. In 1955, ownership was registered in the name of Nouri, the brother of Rachel, who was related by marriage to the applicant’s father. In 1967, title was transferred to Rachel. Following her death, the apartment was ultimately registered in the names of her five children, the respondents in the proceedings.
Gershonovitz had already initiated legal proceedings concerning the apartment in 2012. In those proceedings, she sought only a right of use in the form of a prescriptive easement and expressly stated that she was not claiming any broader rights.
After the Magistrates’ Court held that it lacked subject-matter jurisdiction, the matter reached the District Court, where she agreed to its dismissal. In 2017, she commenced the present proceedings, this time seeking recognition as the owner of the apartment or, alternatively, as a protected tenant or the holder of an irrevocable license to reside there for the remainder of her life.
What Was in Dispute?
The applicant argued that her parents had in fact financed the purchase of the apartment.
According to her account, proceeds from the sale of the family home in Iraq had been transferred to relatives, and the apartment was registered in other names in order to prevent her father from managing the property because of a drinking problem.
She also claimed that there had been an oral understanding within the family that ownership would eventually be transferred to her parents’ children and that she and her family would be entitled to live in the apartment for the rest of their lives.
The respondents presented a different version. They argued that Rachel had purchased the apartment with her own dowry funds and, because she was living in Iraq at the time, initially registered the property in her brother Nouri’s name.
The applicant’s family had been permitted to live in the apartment rent-free because of their financial circumstances, but this amounted only to permission to reside there — not a transfer of ownership or an irrevocable right.
What Did the Court Decide?
The Applicant’s Position in the Earlier Proceedings Prevented Her from Taking an Inconsistent Position
The Court attached significant weight to the fact that, in the earlier proceedings, the applicant had expressly stated that she sought only a right of use and was not claiming any additional rights in the apartment.
In the new proceedings, she asserted ownership and other broader rights.
The Court held that she was precluded from advancing claims directly inconsistent with those she had made previously, applying the doctrine of judicial estoppel.
Her explanation that she had not understood the implications of the earlier proceedings was rejected, among other reasons because she had been legally represented and had confirmed that the allegations she made at the time were true.
The doctrine of judicial estoppel, as discussed in the Supreme Court authorities cited by the District Court, is intended to prevent litigants from adopting contradictory positions in a manner that undermines the integrity of judicial proceedings and confidence in the legal system.
The Land Registry Record Was Not Rebutted
Even apart from judicial estoppel, the Court found that the applicant had failed to prove her claim that the apartment had been purchased with her parents’ funds.
No documents were produced showing the sale of the family home in Iraq, the transfer of its proceeds to relatives, or any agreement that the apartment had been purchased for the applicant’s father.
The witnesses called on her behalf were likewise unable to provide concrete details concerning amounts, dates or the manner in which the purchase had allegedly been financed.
The Court referred to Section 125 of the Land Law, under which registration in the land register in respect of regulated land constitutes conclusive evidence of its contents, and held that the applicant had failed to establish that the registration did not reflect the true ownership.
By contrast, the respondents’ account that Rachel had purchased the apartment was found to be more plausible.
Decades of Rent-Free Residence Did Not Create an Irrevocable Right
The Court accepted that Rachel had allowed the applicant’s family, and later the applicant herself, to live in the apartment for many years without paying rent.
It nevertheless held that this amounted to a revocable license.
The Court emphasized that recognition of an irrevocable license requires a clear basis arising from the conduct and undertakings of the property owner and that such a right should be recognized cautiously and only in exceptional circumstances.
The judgment further held that even if the applicant had established that her father had been granted an irrevocable personal license — which she had not — such a personal right would not have passed to her by inheritance.
The restrictive approach to recognizing irrevocable licenses was consistent with the Supreme Court’s judgment in the Nahum case, on which the District Court relied.
Protected Tenancy Was Not Established
The claim to protected tenancy was also rejected.
The applicant acknowledged that she had never signed a lease agreement with the owner of the apartment, and the Court held that no sufficient factual basis had been established for recognizing her as a protected tenant.
Her claim that investments in the apartment gave rise to rights was also rejected.
The evidence referred to repairs to shutters, windows and sanitary fixtures, which the Court regarded as routine maintenance rather than substantial improvements.
The applicant also failed to provide an appraisal or other documentation establishing the extent of the alleged investment.
Delay Also Weighed Against the Applicant
The Court noted the considerable delay in bringing the claim — 24 years after Rachel’s death — and held that the passage of time had caused the respondents significant evidentiary prejudice.
This factor also weighed against the applicant.
Significance of the Judgment
The judgment illustrates that long-term residence in a property, even over many decades and even where the owner does not demand rent, does not in itself create ownership or an irrevocable right of residence.
Where regulated land is concerned, registered title carries decisive evidentiary weight, and a person claiming that the true ownership differs from the registration must provide substantial evidence.
Likewise, an irrevocable license does not arise merely from the duration of possession or from passive consent. It requires an adequate factual and legal basis.
The judgment also highlights the importance of consistency in litigation: a party who advances a limited claim in one proceeding may later be prevented from asserting a broader and contradictory right.
Decades of residence in a property do not substitute for proof of ownership, protected tenancy or an express basis for an irrevocable right of residence.
Representation
Adv. David Sofer and Adv. Irit Hadar represented the respondents in the proceedings.
The Court dismissed the claim and held that the applicant had no ownership rights in the apartment, was not a protected tenant and had not been granted an irrevocable license to reside there.
The applicant was ordered to pay NIS 75,000 in legal costs and attorneys’ fees. The judgment noted in this context that one of the respondents had been required to travel from the United States to testify.
Source
H.P. 4424-11-17, Gershonovitz et al. v. Shemesh et al., Tel Aviv–Yafo District Court, before Hon. Judge Naftali Shilo, judgment dated June 24, 2019.
The information provided in this article is for general informational purposes only, does not constitute legal advice and is not a substitute for individualized legal advice based on the circumstances of a particular matter.
