by Tzvi Szajnbrum, Attorney at Law

True Case I – A Man of Principles

Mr. Doe was driving in Ramle (in the outskirts of the city) with his brand new car when suddenly out of the blue two goats jumped in front of his car. Mr. Doe pressed the brakes as hard as he could but it was too late. Mr. Doe’s car hit one of them with the side mirror of his car. The goat was taken by surprise, but had no serious injury; not so for Mr. Doe’s mirror.

Mr. Doe still remembers the shepherd running after the goat screaming at Mr. Doe for having hit his goat. As soon as the shepherd realized the goat was fine he “faded away” with his goats. Mr. Doe ran after him and tried to get the shepherd’s name and other details. This was a total waste of time as was the unsuccessful attempt to call the police.

This was a brand new BMW and the mirror had a tag price of $1000 dollars. The mirror was irreparably damaged as Mr. Doe learned later.

Mr. Doe, a man of principles:

Mr. Doe tried everything, he spent days asking around about the shepherd, tried the Ministry of Transport and even the local newspaper. Mr. Doe was obsessed with the “case”. The higher one’s expectations are the higher one’s disappointment can be.

Mr. Doe had no choice but to spend money on a new side mirror; which he had to do after he received a traffic ticket for driving without a side mirror!

Mr. Doe was a man of principles, a man who believed in justice and law. Mr. Doe paid a high price (in the time spent on his obsession):  not for his beliefs, but for not knowing when to pick his battles.

There are occasions in which we have to “give up” – we can’t win. It is not shameful for us to do so, it is the reality we must live with. If we want to be people of principle with unrealistic expectations, it means we are crossing the border between the realist land and the La La Land.

A word of Wisdom:

I suggest you not cross that line and instead remain in the realistic land! It will be impossible to win lost battles, it is impossible to have a shepherd from an Arab town waiting for the police to settle a dispute or for him to hand them his ID.

The opposite is more correct to say. If Mr. Doe had killed the goat, there is no doubt the shepherd would have called the police. He would have been sure to have Mr. Doe’s license plate number and in the end he would have sued Mr. Doe for his damages.

This is called reality!

by Tzvi Szajnbrum, Attorney at Law

It is just not fair!

How many times have we heard this sentence? How many times have we said it ourselves? We all have had our own experience with some unjustified event or consequence.

Life is not about fairness. Life is not about justice.” At most one can expect to have the law enforced but not receive justice. If you have two good eyes and I have only one eye, and I cause you to lose the vision in one of them; would it be fair to follow the edict “an eye for an eye? You would still have one eye but I would be blind!

When you suffer financial damages (caused by a third party) you will probably try to receive compensation. What happens if the entire system cannot help you as it happened in David’s case as follows?

David meets a “friend”

David made Aliyah a few months ago and decided to live in Tel Aviv after a short period with relatives and friends. David was looking for an apartment to share with a roommate when he met Arthur, another new immigrant living in Israel for the last few years.

After a brief talk over a beer, David and Arthur reached an agreement where David would move into Arthur’s apartment (the one he was renting himself). Each would have his own room but they were supposed to share the rest of the apartment. No written agreement was ever signed.

After David moved in, Arthur mentioned something about a “deposit” but only after David had moved in was he told that the deposit was part of the deal. A one month deposit should be paid to Arthur in addition to the monthly rent. This is not something irrational and it is part of many rental agreements.

Arthur did have a written contract with his landlord (a one year contract). The deposit was to be used as a guarantee for Arthur. If David, for any reason, breached the (nonexistent) contract between them, by moving out before the end of the original period (from the contract between Arthur and the landlord), David would lose that deposit!

Two weeks passed and David would not agree to give Arthur the deposit. David felt that if he had known about the deposit and its terms beforehand, he would not have moved in.

A few more days passed and now Arthur was threatening David: He would put all of David’s belongings in the street if he did not pay the deposit. David refused to pay.

After a few more days, David found the main door locked and the lock changed. He went to the police station and tried to open a complaint. The police refused, claiming that this was a civil case and not a criminal act. David went to the court, but because of the Pesach recess he could only talk to a secretary who told him (correctly) that this is a civil case and it would take time to solve the problem (if it could be solved at all  - and if it even could be solved in David’s favor).

There was no instant solution!

Actually, David was also wrong

David knew that Arthur was serious but did very little to minimize the potential damages. David wanted to be right and look for justice (as he told me later) but what about the “other side of the story”?

Arthur (who was also wrong of course) should have clarified the issue of the deposit before David moved in. He should not have let David move in without a deposit, but this was not what happened.

Arthur, as a tenant to the landlord, and as a “landlord” to David, had the right to ask for anything including a deposit. This was a fair request and of course perfectly legal.

David should have been “smart” instead of “right”. He could have paid the deposit, moved out later if he did not like the partnership and sue Arthur. What David could not do was to expect Arthur to do nothing after not getting his deposit. This was clear from the very beginning: Arthur would not give in, he wanted the deposit.

For one’s bad judgment there is a price to be paid

For David, it was a lesson of being “smart” instead of “being right”. He had all of his belongings locked up. Arthur would allow David to take his belongings to another place but would not allow him to come in again!

David was now disappointed with the police, the courts, with lawyers and many others. Fortunately he had friends who helped him and offered him a bed to sleep in until he could find another room to rent.

Principles based on emotions, or on your wish to be right, could cost you dearly!

A word of wisdom:

If you are not ready to compromise, especially if you are in “foreign territory” as I describe the first year or so of a new immigrant in Israel, better to be more flexible. You must understand that you know very little about the legal system in Israel. You should be sure you have a “strong case” in your favor in order to be able to stand for your “principles”.

You may be right, and the law may be on your side, but the implementation of the law could turn out to be a long and sometimes painful process.

Pick your battles.

by Tzvi Szajnbrum, Attorney at Law

Introduction

This is not an academic essay nor is it an attempt to prevent second marriages. This is meant to be a helpful essay presenting all of the facts that surround the legal and psychological aspects of a second marriage. This will probably seem polemic but it is still a document based on factual information.

The overall statistics are not skewed in favor of second marriages. Second marriages generate more conflicts than first marriages both with regards to legal ramifications as well as resulting criminal conflicts. In addition to these facts, the rate of divorce from second marriages is much higher than in first marriages.

Ultimately, it is in the hands of every individual to decide for themselves what is best for them not to mention that rationally, such decisions should mostly be made based on facts and reality. This is the issue that I will be covering here.

All of the examples given below (either relating to “traditional” married couples or common-law marriages) involve children under 18 (minors by the Israeli Law) living with one parent.

Two Categories of Second Marriages

1.     The divorced father with his children:

In most cases the mothers are granted custody of the children and not the father. Therefore, if the children are in the custody of the father then there are usually extenuating circumstances that led to this variation from the norm:

• An incapable mother (for medical reasons)
• A mother who opted to emigrate (or return to her country of origin)
• A mother who was found unsuitable by the courts (after a psychiatric evaluation)
• A mother who is addicted to drugs or alcohol and can’t take care of her children, etc.
• Other non-specific reasons based on a judge’s ruling since they can decide on the mother’s, or the father’s, incapability as they see fit. Even though in most cases these rulings are appealed and sent for negotiation in a higher court, most of the appeals are denied.

2.     The divorced woman with her children and her “non-existent husband”:

This situation is very well known in the world of divorced parents. In this situation, the mother is abandoned by her husband or ex, the father of her children, during or after the divorce proceedings. She consequently becomes the sole provider for the family, the only one who can and actually does take care of them.

In most of these cases the custody was given as a joint custody but de Facto the mother is the only one there for them. Many times the father has not disappeared completely. He is still in the surrounding area but is not participating in the day-to-day care of the children and, generally, is not financially supporting them.

Typically, this kind of father tends to appear sporadically when he feels the opportunity is right so that he can show his children how “truly important they are to him” and how “caring and giving” he really is! As upsetting and unfortunate as this may seem, this kind of father has his own interest at heart and not the children’s, as it should rightly be.

The Implications relating to the divorced woman with the “non-existent husband/ex”:

It is clearly unfair to expect the father to always be the flexible and understanding one in this situation. It is also unreasonable to expect the new step-mother to be reasonable towards her new situation as well. There need to be joint goals and feelings of working together to help everyone co-exist in their new situation and to learn to be more flexible and understanding. By getting professional advice and assistance before this new family cell is created there is a greater chance to achieve balance and harmonious co-existence.

There is no guarantee that this will lead to a fairy tale ending. In many cases not everyone can be appeased and most of those involved in the situation will not have the upper hand and cannot – and should not – expect that their needs or wants to be handed to them on a silver platter. This is most likely a losing battle right from the start and only if all sides involved are willing to give up on their desire to be right and victorious is there a good chance that things can work out. There are no ultimate winners or losers – everyone will lose and win something!

Here are three scenarios that need to be addressed in this situation:

1. Previously non-involved biological father becomes involved in the conflict
   - One must avoid this at all costs since it is extremely detrimental to everyone when the non-involved father figure is dragged into the conflict by the children, a tactic that they most likely will, and can, try to use.
2. Police and legal system involvement
   - When the children understand that they may have a new partner (police and legal system) to back their complaints and dissatisfaction; once these outside forces enter the picture it usually leads to the dissolution of the marriage. It is strongly advised at this point to consult a good criminal lawyer as soon as you have even the slightest suspicion that the children may be using this for their own personal gain.
3. Social Services involvement
   - Another equally dangerous card that can be played and will eventually in almost all cases most certainly lead to police involvement. This should be avoided at all costs!
   • Step-fathers are the most vulnerable figures subject to persecution in any second marriage and if there are step-daughters involved it is even worse. Israel is not a complete democracy and the legal system is even less understanding and democratic. We are one of the few democracies where one can be charged guilty until proven innocent.
   • If a situation arises in a second marriage where a criminal case has been opened against the step-father (i.e., molestation, sexual abuse, improper behavior, etc.), the chances of saving the marriage are close to zero (as are the chances of having the file against the step-father closed with a not-guilty ruling).

One other common and problematic scenario is when the mother becomes extremely “over-protective” of her children. It is almost impossible to save a marriage when the mother acts emotionally to try to “protect” her children. All that is needed for this to happen is for a mother to feel like her children are in danger which consequently leads to her motherly instinctual response.

A mother feeling “attacked” will defend her children in almost all situations even when it seems unreasonable. This is oftentimes a result of her feelings of responsibility to the children when left as the sole caregiver for them and often the emotional side will overpower the rational side. An overprotective mother can be a step-father’s worst nightmare leaving him no chance to be right, being left to fend for himself and feeling overall like an outsider. From my own experience, this is the most common reason for divorce in a second marriage.

The Implications relating to the divorced father and his children:

As you may have guessed, there are many internal conflicts when trying to accept a new step-mother. Children tend to be more reserved, less friendly and less flexible than they were with their biological mother.

The new mother tends to become an “unconscious competitor” with their biological mother generating many internal conflicts and bringing upon her less empathy and sympathy from everyone involved including the father’s extended family. It is a common mistake and in bad taste to do so but it happens very often regardless.

The father is no different than the mother in this regard and will most likely become over-protective of his children thereby generating an unbalanced relationship where the children could play a part in manipulating one parent against the other.

The Implications regarding the Involvement of Advisors:

The more complicated things get, the more advisors, friends, family and free advice you will receive! Give them an inch and they will walk all over you. The more you let them interfere in your family, the less likely you will be able to resolve these conflicts on your own. Keep in mind that they are offering you their opinions and not ultimate truths. You know what’s best for you and your family so only accept help from a neutral party whose assistance you truly want to receive!

Two Misguided Approaches to Step-Parenting:

• The biological parent sees his/her relationship with the new spouse as being specific to them and wants to receive the new spouse’s full attention and concentration, not realizing that it is only natural for the step-parent to act as part of the family as a whole – which includes step-parenting the children too!

• Another common approach to step-parenting is to be the invisible step-parent, someone who is nice to the children all the time and doesn’t get involved in daily conflicts. The younger the kids are, the more unreasonable it is to expect to successfully be the non-interfering step-parent. The more problematic the children are, in addition to the new issues they may have when dealing with the divorce, the less possible it will be for you to remain a neutral bystander without any involvement on your part.

In Conclusion

After a divorce, people generally want to rebuild their lives anew. When one decides to build a new life, one must understand there is a price to pay. Nothing will be as it was before the divorce or even after the divorce period before remarrying. If a new family cell is going to be created it must be recreated using all the proper tools one has in order to help it succeed.

Be Smart:

• Plan ahead and be prepared. You cannot predict the future or prevent complications from arising.
• Do not make an impulsive decision; take your time to carefully evaluate and make rational decisions.
• Be aware of the challenges you will be facing.
• Have a “plan B” just in case.
• Do not let yourself be carried away by emotions as strong as they may be. You must be rational and realistic.
• When and if something “bad” happens it is better to retreat before it is too late, and seek help if necessary.

by Tzvi Szajnbrum, Attorney at Law

More and more people are living longer but not necessarily a better or healthier life. The mental health of those being kept alive by machines or medication is a very delicate situation. More and more “mentally unfit” people are in need of a legal guardian or as it is called in Israel: An “Apotropus”.

In this short article, we will deal with the legal aspect of the “Apotropus”  and other social aspects as well.

The “Hasui”:

This is the Hebrew term for a person who cannot take care of himself. It could be because he is suffering from a general or a mental disease such as dementia, etc. When a person is in such a medical/mental condition, he/she will need someone to take care of him and his needs. A relative is generally appointed as the guardian.

When dealing with a minor, the Attorney General (“Apotropus Ha Klali”, “Ha Yoetz Ha Mishpati La Memshala“) will be involved and even appointed as a co-guardian.

Legal Actions Taken by the “Hasui” Before an Appointment of a Guardian:

Legal actions taken before the appointment of a guardian could be considered valid even if they occurred when there were already provisions for guardian.

It could be that a person is suffering from “dementia” but has not been legally declared incapable (“Hasui”). In this case his decisions/actions can still be valid. However, it is important to note that there are different rules regarding what will be the result of the “Hasui” legal actions.

Legal Actions Taken by the “Hasui” After an Appointment of a Guardian:

The guardian’s consent can be given in advance, before the action, or after. The consent of the guardian does not have to be in writing or by his or her signature, but can also be given orally or by “silent consent” for example.

Legal Actions without the Guardian’s Consent:

The legal actions taken by a “Hasui” can be undone/canceled by guardian or by the Attorney General within one month after it became known to the guardian they were taken by the “Hasui” without his consent.

As long as an action was not cancelled by the guardian, the action is legally valid and the “Hasui” himself is not entitled to cancel the operation.

There are a few exceptions though:

Any kind of “credit transaction” will be considered null and void.

Simple legal actions, such as purchasing the newspaper or simple foodstuffs, a movie ticket, etc., cannot be canceled even if they were taken without the guardian’s consent.

Legal action taken by the “Hasui” with someone (a third party) that did not know, was not supposed to know and could not know about the “Hasui” condition. In such a case the action (signing a contract, purchasing an expensive item, etc.) can be canceled only if it can cause, or has caused harm to the “Hasui” or his property.

There are actions that even the guardian cannot permit or cannot take even on behalf of the “Hasui” or in his best interests. There are cases where a court decision must be given, such as when a guardian wants to sell the “Hasui’s” real estate property even for the “Hasui’s” own good (selling an apartment to buy a better one).

Many Responsibilities:

We all know that it is easier for a parent to raise four children than four children to take care of one parent, even when this parent is still mentally capable.

The guardian will have many responsibilities towards the “Hasui” – actually many obligations and not always many rights (such as when a guardian wants to sell a property belonging to a “Hasui”).

Who Decides When One Needs a Guardian?

In general, a physician can send a person to be evaluated by a psychiatrist or a geriatrist or any other professional dealing with the specific problem.

The decision is a medical decision in the first phase, but only after a court decision is given the doctor’s recommendation can be implemented.

A Word of Wisdom:

It is hard to see a loved one in a deteriorated mental condition. Do not be in denial because this is not in his/her best interest.

You are probably the best person in the world and the first to notice alarming changes in the behavior of one nearest to you. Take action immediately – consult a physician as soon as possible. You can and should be discreet, there is no need or reason to hurt someone else’s feelings but don’t wait.

by Tzvi Szajnbrum, Attorney at Law

Who has Custody of the Children?

Background:

Mr. and Mrs. Smith lived together for 13 years, had two children together, but never actually married each other.

After 13 years they decided to separate. As a result, the “wife” sued the “husband” asking for custody of their two children. After a while, the couple decided by consensus to erase the lawsuit.

Only few months after, the wife became sick after surgery, eventually causing her death. When the mother became sick and incapable of taking care of the children, the father asked the court for custody but before a decision was issued, the mother died.

The children were living with their aunt (their mother’s sister) before and after their mother’s death. They were now “De Facto” under the aunt’s custody but not “De Jure”. She now wanted the legal (De Jure) custody.

The question before the Honorable Judge Asaf Zagury from the Nazareth Family Court was: Should the children be physically moved to their father immediately or temporarily stay (eventually permanently) with their aunt? This was the dilemma in the case due to mutual accusations between the father and the aunt.

The Social Workers:

After a few urgent hearings and detailed testing conducted by the social worker appointed by the Judge, the social worker concluded from the children’s behavior as follows:

“Apparently there is incitement of hatred against the father (by the aunt) and they are torn between the aunt and her family, and the father. For example, it appeared that the minor l. b. held telephone conversations with his father from his school without the aunt’s knowledge, which I concluded was prohibited by the aunt”.

“In spite of the father‘s mental condition (PTSD), he was certainly suitable to function as a father and apparently was a good father”.

The Aunt:

The aunt claimed that the minors were not willing in any way to live with their father; she claimed the father was a miser who evaded his obligations towards the minors, including health insurance funding. She noted that the mother’s unwritten will stated that she, the aunt, continue to raise the minors and that she was willing to do so. She noted that the minors are like her biological children, she is capable of satisfying all of their needs and she was able to take care of them.

The Father:

The father claimed during the hearings that he has all the conditions to raise the minors; he also claimed that he lives in a spacious house and that he has free time to take care of his children. The father believed that the aunt was poisoning the minors against him and he also claimed that during the common life with the mother (now deceased), he was the one who brought up the minors; therefore he has the ability to manage the household.

The Law:

Parents (as guardians) have the duty (obligation) and the right to guardianship to take care of the needs of the minor, including his education, studying, training for work, as well as saving his assets, and with these rights and obligations they also will have the authority to custody and to choose the place of residence.

By law, when one of the parents dies the court can appoint another guardian besides the remaining parent as an “extra guardian” or even as a replacement for both the parents (rarely done).

The Decision:

In an eleven page decision, the Honorable Judge Zagury decided to return the children to the father.

He also added that the father should let the children see the aunt and her family on a regular basis.

In addition the Judge wrote:

“I order (oblige) the father, the aunt and the members of her extended family to cooperate with welfare authorities, to ask what are the messages to be sent to the children and implement the instructions they receive from the social workers and the welfare system (in this context regarding both child custody and the transfer of the minors to the father).

A word of Wisdom:

This, like many other court decisions, is a utopian decision where an acting Judge sitting in a court room far from the family, “orders” them “to behave and cooperate”. Worse is the fact that the Judge is hurting the already very weak parental authority of the father by transferring it to the social workers.

In my opinion, these “instructions” should not be in any court decision ever. If it was easy and possible for the sides to have a normal relationship, seeking the best interests of the children, this case would never be judged; the problem would have been resolved in a civilized way by the contenders themselves.

What Should You Learn from this Case?

It is almost impossible to win a case when the best interests of the children are not the main goal and purpose of the legal battle. The contender’s sides are less important than the children – they are the only relevant side in a case regarding custody.

This case could have ended differently if the aunt and her family would have behaved in a more civilized way, but she chose emotions over reality.

If you ever have to fight for custody of your children, the first step, long before starting the case, is to consult with a professional in the field of education and psychology. You must learn how to present your case not only from the legal aspect but also show the Judge that you are a loving and caring parent. Yes, it is also a “show” where you are the actor. It is all about presenting the case from the human aspect with a strong legal basis.

Even better is not to fight in court but reach an agreement outside the court. It will cost only a fraction of a custody case and no one will be seriously hurt.

by Tzvi Szajnbrum, Attorney at Law

Who is That Man and Where is He?

These two simple questions can be your nightmare.

Israel is a small country with many “secrets”, many people not willing to handle information and others “playing the secret service game”.

A few days ago I called a landlord who was giving a “hard time” to his tenant, a new immigrant.  I started my conversation with a regular “Shalom Greeting” but the other side said nothing. I was talking to the walls. I didn’t give up and asked to speak to Mr. Doe just to learn that the answer to this simple request was: “Yes”. Again I asked is this Mr. Doe? The man answered me by asking: “why”?

It was clear that this person did not want to speak to me. He was trying to understand if I was a friend or foe. It took me three minutes to find out that this person was Mr. Doe. The only clear message in his “conversation” was that he had no intentions of reaching any agreement! We will meet in court where he can be as secretive as he pleases and say absolutely nothing if he wants (and lose the case).

Why do I have to know this man?

Mrs. Smith was looking to rent an apartment when she met Mr. Charming, a real estate agent “working from a secret office” (probably from home). Mr. Charming presented himself as a real estate agent for a “large company” (again – secretive).

Mrs. Smith was under pressure; she needed an apartment immediately.  Therefore she signed “a contract” with Mr. Charming in which she was to pay him a month’s worth of rent if he could find her an affordable and good apartment.

Mr. Charming showed her a few apartments in the greater Tel Aviv area that were all like “dumps” (some were simply unlivable), until he finally found her a “dream place” with affordable rent.

Mr. Charming made an appointment with the landlord; after a tense meeting a contract was issued. Mrs. Smith was to receive the keys in 10 days, at which time the present tenant was to have vacated the premises according to the promise of Mr. Charming and the landlord.

The next day Mr. Charming called again and made an appointment with Mrs. Smith in order to be paid for his services. She met him, paid him and even received a receipt.

Ten days passed and nothing happened. Mrs. Smith called Mr. Charming but he would not answer her phone calls. She suddenly realized that she didn’t have the landlord’s phone number. Now very worried she went to the apartment and was very surprised when the door opened and a young man and his wife asked how could they help her.

It took her like thunder when she discovered that this couple were the real landlords – they are the owners of the apartment and they had never heard of Mr. Charming or any other person who could possibly be a landlord!

At the police station Mrs. Smith learned that this is a well-known “scam”. Someone poses as an agent, they break into an apartment, copy the keys, show the apartment to a few people (mostly new immigrants or foreign workers), and after making a good deal of money they disappear never to be seen again.

What can you do to prevent these scams? I will give you some guidelines but you should know that the best defense is common sense.

Why MUST I know that man?

David, his wife and a child with special needs came from South Africa and needed a place to stay before making a decision on where to live. For this purpose they chose to temporarily rent a small apartment in a good neighborhood in Jerusalem.

One can find many real agents on the Internet as Mr. David did. He found an agency subletting short term rentals. It was more expensive but the pictures looked good and the location was the best.

Mr. David wired the money after negotiations. They were very excited when they arrived at the apartment; but to his dismay he found the apartment going through “renovations”. Handymen were still working, the place was in bad shape and the smell was terrible. They moved into a hotel!

To make a long story short, we represented Mr. David in a two-year case where damages were relatively small, less than $ 5000, but the complications in the case where extensive.

Mr. David had hired a real estate agent who was not to be found when things got ugly. All we had was a website and a phone number where we could just leave a message. This agent had a partner who was not in Israel, or at least was going back and forth very often making it hard to locate and serve her.

The evidence we had was mostly emails. Her lawyer was an inexperienced, emotional new immigrant himself. This is what we lawyers call a “disaster case”. We won in the end but could Mr. David have done better? The answer is yes!

Mr. David learned his lessons and I want to share some with you here:

Some Tips:

In a transaction done through the Internet the best way to pay is by a credit card. You will have 90 days to cancel – enough time to be sure you get what you paid for.

Do not do any real estate business with “sites on the Internet” especially if the company is not a well-known one. If the company appears to be more like a “one man show”, do not hesitate to ask for a copy of his/her ID and/or passport.

Ask for an address you can check to make sure it is real. Email addresses won’t help you. You should be looking for a real person at a verifiable address.

Names are fine but you need more than a name. Try for example a bank account in his name. If the person asks you to deposit the money in a third party account, refuse!

Never pay the entire amount up front. If the person is “very anxious” it could be a bad sign – watch out.

Pressure on you is another bad sign. How many times have I heard new immigrants telling me that “that specific place was to be rented the very next day”, “I must sign today” etc. It is always the same story. The real estate agent or the landlord was putting on pressure – don’t fall for it. If you miss the opportunity, many others will appear but mostly you are just safeguarding yourself. Take no chances!

A memorandum is another bad sign. Do not ever sign one; it does not matter how “simple or inoffensive” it may look. A memorandum is a contract and never in your best interest.

Consult with a lawyer. It won’t cost you anything just to ask some questions and remember, we will be happy to assist you.

by Tzvi Szajnbrum, Attorney at Law

Mold, Drainage and Moisture in Israel are a well-known painful phenomenon that affects half of this country’s apartments. This is the sad reality we have to deal with.

As I have written previously, the sole responsibility to fix moisture and mold lies on the landlord’s shoulders as specified by law. This law determines that the landlord must fix any tangent problem restricting or limiting the use of a rental property. It does not matter if this specific clause does not appear in the contract. It is all about the circumstances and how reasonable or unreasonable these circumstances are.

It may be impossible to convince a Judge that a room that had to be evacuated because of water problems is “reasonable”. If a room cannot be used because of water damages the contract can be considered void/null or at least the rent should be recalculated accordingly.

Mold and New Immigrants:

Mold is a different case. Mold can be a result of your own doing. I will try to explain.

Because of the material used in the construction (we rarely use dry cement walls, etc.), our walls “behave” very differently from what you are accustomed to. If you are used to keeping all the windows shut, you will certainly find mold on the walls – it is just a question of time.

Rooms must be ventilated in the winter or you will see those ugly black spots popping out on the ceiling and walls very rapidly. Friends may suggest bleaching, painting or any other “technique”. Don’t waste your time because the mold will come back. You can bleach and paint but to avoid the reappearance of the mold you must open the windows and ventilate the room.

The Common Roof of the Building:

It does not matter on which floor the apartment is located; the roof is the common responsibility of all the property owners – not the tenants living in the property but the owners.

This is a problem because a roof will eventually leak if not maintained properly every few years. The question is now who will be responsible for the bill, finding the right person to do the job, etc. It is not you but the landlord who is the only one responsible for your wellbeing in his property.

This is the problem. The landlord will have to deal with a leak on the roof because a leak will certainly affect you as his tenant. You will need a lot of patience – it will take some time because a roof cannot be fixed in the winter when it is raining – not if you want it repaired correctly.

The Common Installations of the Building:

These are the drainage pipes along the building (coming from the roof), sewage pipes, faucets in public areas, elevators, etc. These are all common property and they are considered as the roof – the responsibility is on the “Vaad Habayit” of the building but it is not your concern at all. Your landlord is the one responsible to deal with the “Vaad Habayit“.

The Unique Problem Caused by Foreign Owners:

Jews from all over the world have been buying real estate in Israel for years but not necessarily living in the property they buy. Property management in Israel is a booming business but there is bad news about this as well.

Many buildings, especially in the center of Jerusalem, became more like a “ghost premise” with too many empty apartments.

When the landlord does not live in the property and if there is no property manager (this is the case with most of these properties) or not even a normal way to communicate with the owner of the property, things can be hard on those tenants living in that kind of building even if the property they are living in has a landlord living in Israel.

When any major damage is caused to the common area a large amount of money may be needed to make repairs, the difficulties for your landlord due to the lack of communication with other owners, etc. will also become your difficulty.

Be prepared for a long waiting period until the problem is finally solved. Try to be calm, polite, but persistent. The problem is not your problem but your landlord’s problem and he is responsible for the property. He receives the rent – this is his issue and not yours. DO NOT get involved with the “Vaad Habayit“.

You can politely emphasize to your landlord that it is not enough to make an effort. He must succeed in fixing whatever needs to be fixed. This must be done within a reasonable time.

The courts have decided on several occasions that the obligation to repair water damages is a requirement of the rental contract, and he cannot be exempt by his “efforts” – he must solve the problem and failing to do so is a violation of his duty as a landlord.

A Word of Wisdom:

When a problem arises, try to have a good conversation with your landlord. If this conversation does not lead to solving the problem, let a lawyer speak to him/her. We will probably have better results.

by Tzvi Szajnbrum, Attorney at Law

The problems begins right here, because in fact this should not be a tenant issue at all, but a landlord issue. Unfortunately in Israel, most landlords have a total disregard for the subject.

Moisture, Drainage and New Immigrants:

This is a bad combination because Israelis are used to the “Smoch Alai” (“Trust Me” approach) – if you hear your landlord say “trust me” be sure that nothing will be done or repaired!

On the other hand, new immigrants are used to a different standard, a different climate, a different type of construction and material and especially, new immigrants are used to the traditional way of doing business where the property is almost wholly the responsibility of the landlord and not a problem that the tenant should handle himself!

A Bad Combination?

Add a “professional” (plumbers, carpenters, renovators etc) and you will learn how a bad combination can turn into a nightmare.

Like everywhere else in the world, these professionals are at most (not everyone but in general terms) “not very punctual”. You can wait days, even weeks, until they finally complete their work. You will learn that these Israeli professionals are the most creative at giving excuses.

Worst of all are the “shortcuts” they use. Why should they change a pipe if the leaking can be “deviated” to somewhere else? Why paint the entire damaged wall if you can paint only that small damaged part?

Why do you have to handle all these problems?

Very simple answer: You do not have to. You should not and must not handle these problems. If you can – avoid being part of the “fixing process”. This is not something you should be doing but if there is no other way, at least do it right. Fix it yourself or move out.

Doing it right – Be sure you really want to move out.

If you have tried everything with no results and the landlord refuses to fix the problem it is time you do it yourself. If you want to move out to a better place, take your time and re consider. How can you know if the other place will be better? Especially in the summer when every wall is dry and looks good, you will never know about any serious problem. Consider how acute the problem is in your present location.

If you have made your decision to start looking for a new place – wait! You now must notify the landlord. Read the contract and consult with a lawyer. There is always a way out when the landlord breaches the contract.

There are other issues to be considered such as: Unpaid bills, fixing the things you may have broken during your period as a tenant, a security check you may have given your landlord, etc.

Only if you are absolutely sure you can do it legally and in the right way should you move out.

Can I sue the landlord?

You can, but for this purpose you have to prepare yourself very well. There must be no grounds for doubts.

Remember that the burden of proof is always on the plaintiff’s shoulders – meaning you! Therefore, take the time to have a well prepared case before moving out. You will need to consult a lawyer beforehand. You will be given instructions (every case differs from each other) even by phone – act accordingly.

You have decided to stay – Start fixing what is wrong and do it in the right way:

The right way starts in giving the landlord notice. This means a notification by law according to what is said in your contract. This is generally done by sending a registered letter, optimally written by a lawyer.

You now need pictures (use the daily newspaper in the background to be sure everyone can see the date the picture was taken) and if the damage is “big” this won’t be enough – you will need an expert review. An expert opinion will cost money; but it is a must when the damage is not only to the walls but also extensive damage to your belongings.

If you need to replace any belongings, purchase them in a regular store where prices are average and keep the receipt. The secret is to act as if you are purchasing something with your own money – spare the landlord’s money as if it was yours.

The next step is to find reliable professionals. Use the many lists and groups on the Internet – and better if you use the Anglo groups. Be sure the person you are hiring is especially reliable.

Do not even consider saving money on VAT. Pay the agreed amount including “Maam – VAT” and ask for a receipt. Not just a receipt but a very explicit one that specifies the work done and what kinds of problems were fixed by him.

Be organized:

Keep track of every document, receipt, picture, etc. Better to have some type of “diary” where every step of the process is reported. From the day the problem began to the day the problem was fixed by you or the day you moved out. This can be very helpful in the future, especially in court.

Next week: Mold in Israel.

Invitation for Voleh’s Pesach

We will be hosting a limited group of singles for Pesach. If you are interested please read the instructions and sign up.

Where: We will be hosting in our home in Elkana.

When one must arrive at Elkana: No later than 4  pm. We will provide instructions on how to arrive by bus but we will not be able to pick anyone up.

Who is eligible:  Any single from 20 years old and up.

What can you bring: Please do not bring any food nor any other gifts.

The invitation is for the entire “Chag” of the first night of Pesach, meaning Friday-Saturday. It will not be possible just to come for the Seder.

Kosher: We don’t eat kitniot , Matzot are only Shmurot, but we eat “gebrochts”.

The cost: It is free but you must sign up by email by March 20 at: lissabirth@gmail.com

If you have any questions please contact me at the above email or by phone: 052-8988316

Lissa Szajnbrum

by Tzvi Szajnbrum, Attorney at Law

You are about to sign your first contract with your new employer. This is your first real job in Israel? Wait: Do you really understand the intricacies of this contract? Is the language clear to you?

The Language:

For some reason, hi-tech companies prefer contracts in English. This is very “user-friendly” but if for any reason you have to go to court regarding the contract, it will not be accepted in court in English and you will need a Hebrew version.

It is better to have a Hebrew version signed and a translation for you.

Your Basic Rights:

If you do not find the basics in the contract, such as severance pay, etc., do not worry for a second. These basics are protected by law in such a way that you can never lose or even waive your rights (the paternalist approach of the Israeli law).

The Contract Period:

It is common practice to have “open-ended contracts”, meaning the starting date is stated but not the ending date. It is legal to have an employment contract for only a limited period of time – in which case the termination is agreed upon in advance.

Early Departure (for all kinds of contracts):

It is possible that the employer will impose “sanctions” on an early departure within the established period (even when the contract is an open one with no termination date set in advance). In this case, the agreement should be examined carefully. Think about the meaning and consequences of such a commitment. Is it worth it? Are you sure you won’t move to another city? Commuting could be difficult and you could find yourself having to give up this job – what now? Sanctions or penalties could be “bad news” for you.

There is also “good news”: If the agreement specifies a penalty for early departure, even then it is not certain that this clause is valid and can be enforced in court! It is up to the Honorable Judge to decide and each case is unique.

A Word of Wisdom:

Do everything you can to not agree on these kinds of sanctions/penalties. The new job may be very tempting but as a new immigrant you never know if you won’t have a “special need” causing you to move or make other changes. I have seen this too many times, therefore I suggest this: Avoid signing a contract with that kind of limitation because the last place you want to find yourself is in court trying to convince the Judge.

More Limitations:

If you will be working in a “special field” or on a “special project”, there is a clause of no other work permitted during the period of employment/contract. Do you really mean not to be working on something else? Are you sure you are not already working on something else? Even as a freelancer or as a volunteer for another company or organization? This type of limitation could cause big problems for you.

Very often the limitations imposed are not only regarding the specific work you do but any other work you may want to do in your free time. This is the “total devotion to work approach”.

Clause 14 – A Limitation or an Improvement?

If you have agreed upon this clause giving you the right to receive severance pay regardless of the reason for termination of the contract (quitting or being fired) it could be “good or bad news” – it depends and can be a catch 22 situation.

The Good news:

If you quit after a few years because you find a better job or because you don’t get along with your boss anymore or any other reason, you will still be entitled to receive severance payment. Yes! There is such a thing but wait…

The Bad news:

Many employers, despite the law and their obligation to deposit your pension in any kind of “fund” (insurance company, bank, etc.), disregard the law. And not only that, they do not pay their share into the fund every month, but do deduct your share from your salary without transferring it to the fund!

The consequence:

Let’s say you have worked for ten years in that dream job but now you have been dismissed/fired. You are certainly entitled to receive severance pay but by the same clause (14) you will receive only the existing balance in the pension fund and no more.

As with many employers in Israel, yours may be one of those depositing only part of his/your share into the pension fund. Or it could be that you both have never updated the salary with the fund (for example: you have a monthly 20,000 shekel salary for the last three years, but the fund receives according to the old salary, let us say 15,000 shekels a month). In this case you will receive the money available in the fund (the fund is paid “as is” with no additions) and your employer will have no legal obligation to “complete the missing chunk”.

In the case above the loss (for ten years of work) is enormous: More than 50,000 shekels plus years of interest.

A word of wisdom:

A new job and a new contract is in general a long term deal and it must be regarded as a very serious move in your life. Analyze the situation based on a long term contract with long term implications.

The present may look very tempting but the future will be “knocking at your door very soon”. There are many implications and many people involved: your children, your spouse, etc.

Do not sign in a hurry. There is no rush! Take your time to understand the contract and consider every clause in it. It is better for you to consult a professional lawyer regarding the meaning and negotiation of an employment contract, than to have to hire one to fight for what is best for you later on.

How many times have you heard Israelis say: Trust me (“Smoch Alai”) even, and especially when they don’t a clue of what they are talking about? Most times they don’t really know who you are what your needs/goals are and they don’t even have any final plan in mind to begin with! This is one of the most common syndromes that exist in Israeli society.

Exactly on the opposite side of the spectrum is the “I never trust anyone” syndrome. Surprisingly enough, this is the most common approach used when referring to lawyers in Israel. Let me elaborate.

Now let’s, for a moment, take patients who visit and trust their physicians almost blindly with God-like awe and reverence. When consulting with any professional, including a doctor, obviously one must trust his professional expertise to some extent because we, who have never learned medicine, do need a person such as him/her to service us using their knowledge and to eventually cure us from whatever our infliction may be.

The funny thing is that when it comes to our health and well-being, it is rare for someone to ask for a second opinion even with the knowledge that medical malpractice is one of the most serious serial killers we know of today. More people die from doctor’s mistakes than from the actual danger the sickness itself presents. If we could be diagnosed correctly, and in a timely manner, many lives could be saved.

When being prescribed medication why don’t we try to learn how the medication works, what kind of chemistry it has with our bodies and why don’t we bother to even read the package leaflets of the medicinal products to understand its risks etc.? Most of us accept it blindly even when it is our own health on the line. Truthfully, if we did bother to read the warnings and drug information the chances are high that we would think twice before taking it.

Lawyers on the other hand are subjected to constant doubt and suspicion across the board. The exception lies in two very distinguishable groups in society (please note that this is an overall generalization and is not necessarily true for all individuals).

The Tycoons which includes the multinational corporations that function abroad.

I’ve spoken to lawyers representing Microsoft, just as an example, who were never asked by Mr. Gates to translate any of the extremely intricate contracts they were representing into English. These people know they have to trust local lawyers and they rely on them wholeheartedly to complete their business since otherwise no contract would ever be signed between two companies in two different counties.

In order to have a binding contract in Israel it must be in Hebrew. The original contract can be in any language but if any divergence arises between the parties, the contract presented in court must be in Hebrew. These multinationals hold local law offices as their trustworthy representatives and in order to be well represented, a strong mutual trust is needed and maintained.

Foreigners the second group in which the trust plays itself out in very different ways.

There is a very deep sense of trust among foreigners (New Immigrants) who have a very difficult time trying to understand and sometimes get frustrated when trying to fight the system. They want to understand what they are signing which is fair enough especially if what they are asking you for is the basic principles and not every detail. Sometimes they want to know all of the intricacies of the issues at hand and a lawyer, although wanting to be transparent and accommodating, can often times come across as being the exact opposite when they are not keen on sharing every little detail.

The Israeli law is a mix of many legal systems: The “Halachik” law, British law, Turkish Legacy left behind by the Turks, even some German and American law. In addition we don’t have a written constitution – what a mess isn’t it? The law is based on legal precedents making the system a very dynamic one. A lawyer defending a case in the Supreme Court must be updated the very morning of the hearing about any latest decisions made by the Supreme Court the day before.

Because most of our laws have already passed some form of “Judicial Criticism” it is most likely that a lawyer will have to review them before making a decision regarding the case or the legal question presented to him. This is why it is almost impossible to translate legal documents in a clear, everyday language without explaining in detail the meaning of every one of the different clauses and laws.

This is all even more relevant and correct when dealing with criminal law and real estate (purchasing a property in Israel). The criminal law is very complicated and very different from the American Law. Real Estate is a legacy from the British and Turkish mandates in Palestine and is extremely difficult to work with.  For this very reason one must (like it or not) trust the lawyer that one chose to represent him/her.

Words to the Wise:

• You must work with the system and not fight it.
• Even if you don’t understand the system or don’t like it use it to the best of your advantage because it is this very system that you will be relying on to buy or sell a property in Israel or to, God forbid, work out some form of settlement if you are accused of a crime.

Your lawyer is your best friend on these occasions. You don’t have to follow anyone blindly and you should definitely question and clarify when you feel the need, but the final decision is yours. Just remember that you hired your lawyer for a reason and if your lawyer knows the law he/she will make sure the system works for you and not against you!

by Tzvi Szajnbrum, Attorney at Law

What’s wrong?

Mr. Doe called me asking for legal advice. His first question was: “Do you charge for your services”? I responded: “No, we don’t charge for legal aid but we will charge if you need legal representation”. Mr. Doe became defensive wanting to know the difference. Instead of explaining the difference, I offered to hear his problem by phone. He insisted on a “personal meeting” to which I agreed.

A few days later I met Mr. Doe to learn about his concerns regarding a Real Estate transaction. Yes, Mr. Doe asked me to “help him in a simple Real Estate transaction”. Well, as you may know by now, a Real Estate Transaction is the most complicated legal field in Israel and not “help” but “representation” is needed.

The Right way:

Mr. Doe could not understand why he had to pay (lawyer’s fees) for that kind of service and I cannot understand why Mr. Doe needs “Free Legal Representation” when purchasing a $ 550,000 apartment.

The only way to purchase Real Estate in Israel is through a lawyer and “free legal aid” does not include this kind of service.

What’s wrong?

Mrs. Smith called asking for help drafting a lawsuit to the Small Claims Court regarding “bad and unfinished work” some guy did on her apartment. Among the sentences she used and the questions she asked were: “Do you do it for free” for which I answered YES. She asked again: “You will not charge” and again I said NO but I will not represent you in the Small Claims Court because lawyers are not allowed in the Small Claims Court.

I also explained to her that she would have a very hard time in the Small Claims Court due to the nature of the case. Not every case (even if the amount is in the range permitted by the court) suits this kind of procedure. It will be hard to explain in this short article the rationale for this. You should trust your lawyer!

Mrs. Smith was now offended: How come I could not represent her in court? Why should she pay higher fees in the regular court? Finally Mrs. Smith told me that she was disappointed in me because I would not represent her. My explanations did not help at all!

The Right way:

Trust your lawyer. He has more experience than you do and he knows the system. In cases where you are claiming damages caused by a professional such as a plumber who did a bad job and caused extensive damages, etc., do not try to convince the Judge with pictures and explanations. You will need more than that – you will need an expert opinion professionally done.

What’s wrong?

That same day Mrs. Brown called me with a similar case. A lawsuit regarding renovations in her house that as she claimed, caused extensive damages of over 40,000 shekels, but she would sue for only 30,000 shekels to be able to use the Small Claims Court (according to the maximum limit amount for that court)!

She asked the same questions adding few interesting lines: “I have lawyers in the family here in Israel – very big lawyers” and “This is a clear cut case”, “The Judge will understand it easily”, “I will win easily”.

If Mrs. Brown had such a “clear cut case” why did she want me to draft a lawsuit? If she has all these “big lawyers” in the family, why does she need ME to do the work? I tried to explain that a court case is never “clear cut” and there is no certainty of the results – ever. I also tried to explain to her that she had no chance in the Small Claims Court. She needed an expert opinion from an appraiser but she would not listen to me. Mrs. Brown knew better.

The Right way:

If your damages are 40,000 shekels, do not compromise for less just because you want to “save lawyer’s or court’s fees”. I don’t remember any case where you sue for 30,000 shekels and are granted the entire amount after the hearing! Not in the small claims court – not if both sides were heard by a judge.

Mrs. Brown was willing to sacrifice 10,000 shekels, take the chances of losing another 10,000 shekels or more and all that to “save” lawyer’s fees that could be at most 20% of the total amount she would be granted if she won the case.

In this kind of case, the Small Claims Court is a certain loss for you! Don’t do it!

What’s wrong?

Mr. Clark called regarding his wife and a possible divorce case. How disappointed he was when I could not agree even for a fee to follow his “commands” and use the children as a weapon! Mr. Clark gave me the famous “client-lawyer speech” telling me that a lawyer must represent his clients as they wish to be represented. I refused to take part in any case where a father wants to use his children as weapons.

The Moral:

This is only a small example of our day as lawyers. We cannot do miracles – only wonders!

We need your understanding and your help because in the end we are representing not ourselves but our clients. We need your trust and cooperation to win.

Remember that your victory is also in our best interest. You win – we win!