The Supreme Court ruled: A municipality may collect participation fees from residents for the replacement of asbestos roofs (Photo: Eran Gilvarg)
This is a class action lawsuit filed by a resident of Migdal Ha'Emek against the municipality in 2020, on behalf of 388 homeowners in her neighborhood, claiming that the municipality charged homeowners, contrary to the law, money for replacing the asbestos roofs in the neighborhood that were found to be carcinogenic, and that she was not allowed to do so because the government allocated money to the municipality for replacement the roofs
According to the resident, in 2014 the Minister of Housing at the time committed to transfer to the municipality a grant of approximately NIS 3 million for the implementation of the roof replacement project, subject to the municipality's participation in financing 20% of the project's cost.
However, later the minister changed, and the new minister ordered not to transfer the money as a grant.
As a result, the lawsuit claims, the Migdal Ha'Emek municipality decided to replace the asbestos roofs itself and charge the residents a partial amount of NIS 4,000 per apartment, which covers about 25% of the project's cost, with the municipality financing the rest.
According to the applicant, the municipality collected the money from the residents without authority, without enacting an appropriate municipal by-law, and it should be required to return the amounts it collected despite the replacement of the roofs, which it actually carried out in the private residences.
The district court approved the claim as a class action
The Migdal Ha'Emek municipality, through the lawyers Ofer Shapir, Amir Birnbaum and Helen Rubinski-Tal from the office of Ofer Shapir & Co., claimed that it was not a mandatory payment, but rather a payment given in exchange for a service and therefore it did not need an explicit authorization for this by law.
According to her, the replacement of the roofs was done for the well-being of the residents of the neighborhood, an action that is the responsibility of the apartment owners, and the municipality mobilized in order to help in light of the residents' difficulties in getting together in order to contract with all the necessary professionals and contractors, while meeting the requirements of the Ministry of Environmental Protection for the disposal and burial of asbestos.
In addition, the municipality stated that most of the apartment owners gave their consent to the replacement of the roofs, and that the work was actually carried out, thereby improving the properties of the residents.
The district court approved the claim as representative, and determined that even if the municipality's intentions were good and aimed at the well-being and health of the residents of the neighborhood, the participation fees it required them to pay were imposed on them, and that was enough for the residents to be able to demand their money back.
The Supreme Court accepted the appeal
Lawyer Ofer Shapir, from the office of Ofer Shapir & Co. (Photo: Yoni Raif Tagari)
Against this decision, the municipality filed a request for permission to appeal to the Supreme Court, and claimed that the district court approved the claim as representative based on an incorrect determination that the amounts collected by the municipality constitute "mandatory payment", and that their collection without express authorization was done without authority.
Beyond that, the municipality claimed that the district court erred by stating that the project was budgeted by the Ministry of Housing.
The Supreme Court asked for the response of the legal adviser to the government, and this was the approach that stated that these are not mandatory payments and therefore their collection does not require legal certification.
The ombudsman even confirmed that the project was not budgeted by government ministries, but fully by the municipality, therefore there is nothing wrong with the municipality charging participation from the apartment owners for the replacement of roofs, which is a service for the apartment owners.
The Supreme Court at the hearing recommended the plaintiff to accept the appeal, while expressing a firm position that the district's ruling is wrong and that there is nothing wrong with the municipality's collection of the participation. At the end of the hearing, the plaintiff accepted the Supreme Court's recommendation and accordingly the verdict.
According to lawyer Amir Birenbaum, "The meaning of the verdict is that the claim of illegality in collecting participation for the asbestos project is not true.
The ruling and the position of the legal adviser to the government clarify that not every payment that a municipality collects should be classified as a mandatory payment, and support the authority of a municipality in appropriate cases to provide its residents with additional services and charge a fee for them."
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