Summary of the plaintiffs' arguments in their summaries
- Close to the date of the purchase of their apartment, the plaintiffs began to act to promote the expansion of the apartment and the addition of a safe room in accordance with the instructions of the Home Front Command, which require that 70% of the walls of the safe room be built on the ground floor, with the consent of 3/4 of the apartment owners in the condominium, which constitute 92% of the common property for the execution of the building addition, and the defendants are the only tenants who refused the request for expansion and the addition of the safe room, by filing an objection to the Planning and Building Committee.
- For about four years, the plaintiffs worked in an attempt to obtain the defendants' consent to expand the apartment and build the safe room, but all the proposals and alternatives that were offered were rejected or attempts to enrich themselves in an unlawful manner. The defendants' refusal is unjustified, since the defendants themselves expanded their apartment in the past without the consent of most of the apartment owners, and in contravention of the permit given to them. The plaintiffs emphasize that this conduct of the defendants, in the expansion of their own apartment, constitutes an implied consent to a similar expansion of other apartments in the building, in accordance with the provisions of the law. It was further claimed that as part of the expansion, the defendants used hazardous materials to build an additional room adjacent to their apartment, in a manner that creates a health hazard to the plaintiffs. In these circumstances, the plaintiffs claim that they are entitled to obtain the defendants' consent to expand their apartment and build the safe room, inter alia, for the reason that the defendants themselves expanded their apartment.
- It was also claimed that the tenants living in the defendants' apartment run a kindergarten in their apartment, which for this purpose delimited the yard, which is common property, and annexed it to their apartment without the consent of the other apartment owners.
- It was further argued that the defendants' conduct was done in bad faith, while ignoring the number of days allotted to the plaintiffs for submitting the decision of the Supervisor of Land Registration (hereinafter: "the Supervisor") to the Planning and Building Committee, and that the defendants' refusal to approve the construction was not based on a practical or justified reason, when they were offered many solutions, which were rejected.
- It was copied from Nevothat the defendants' actions and omissions caused the plaintiffs significant economic damages, both due to the conduct of the legal proceedings and due to the fact that their apartment stood empty, without the ability to rent it to a third party, and had the defendants' consent been given to expand the apartment and build the safe room about four years ago, the construction costs would have been about 50% lower. Therefore, the Supervisor is requested to accept the claim, to instruct the defendants to agree to the proposed solution and to allow the plaintiffs to complete the expansion of their apartment and the construction of the safe room, as well as to charge the defendants for the expenses of the legal proceeding, including attorney's fees.
Summary of the defendants' arguments in their summaries
- The defendants claim that this is not a routine lawsuit, but rather a material property violation of their rights and private property. The provision of Section 2(b) of the Common Regulations states that an apartment owner is not permitted to make changes or repairs to his apartment, which may damage another apartment, without obtaining the consent of the other apartment owner. In order to build a safe room in the plaintiffs' apartment, substantial physical changes are required in the structure of the defendants' apartment, including the demolition of an existing bedroom and the construction of an alternative room in its place, which includes "descending walls". It was also argued that the Supervisor has the authority to revoke a decision permitting the expansion of an apartment, where material harm is caused to another apartment owner.
- Beyond the material damage to the existing structure, the expansion of the plaintiffs' apartment is expected to entail a significant financial expense for the defendants as well as harm the tenants who live in the apartment. The defendants cannot bear this kind of financial burden, the cost of which is estimated at hundreds of thousands of shekels. The plaintiffs' apartment is not located in an area defined as a risk area in the state, and therefore there is no urgency or immediate need to establish a safe room, certainly not with severe and substantial damage to the defendants' property.
- The defendants claim that they worked many times to reach understandings with the plaintiffs, but despite their patience and patience, they were unable to reach agreements, which they claim was due to extortionate and bad faith conduct on the part of the plaintiffs.
- According to the defendants, Appendix 4 to the statement of claim should not be regarded as the tenants' consent to the expansion of the plaintiffs' apartment or to attach parts of the common property to their apartment or to construction on the common property, as required by section 71B(a) of the Land Law, which establishes clear rules regarding making changes to the common property and exercising building rights. It was also claimed that the plaintiffs were not given explicit consent by the apartment owners, and therefore acted in contravention of the law. Decisions relating to the common property must be made in the framework of a general meeting of the apartment owners. From the aforesaid it appears that the expansion that the plaintiffs seek to carry out is expected to cause material damage to the defendants' apartment, and therefore even if the plaintiffs have at their disposal the required majority, this does not legitimize the execution of the expansion.
- Granting a permit to expand an apartment despite the objection of the minority constitutes an exception to the rule that requires the consent of all apartment owners to remove parts of the common property and attach them to a particular apartment. Therefore, this exception should be interpreted narrowly, while ensuring that the infringement of the property rights of the minority is minimized.
- A review of the decisions of the Planning and Building Committee shows that the reasons for not granting the building permit to the plaintiffs are planning and engineering in nature, and contrary to the plaintiffs' claim that the building permit was valid until the end of 2024, the defendants were never presented with a valid building permit or a decision of the appeals committee.
- The plaintiffs' claim regarding construction carried out by the defendants in violation of the permit was raised for the first time only in the framework of their summaries, and therefore it should be dismissed out of hand. It was further claimed that the defendants purchased the apartment together with the building addition, which was built in accordance with the building permit. It was further argued that to the best of the defendants' knowledge, a freeze order applies to the land by virtue of the promotion of an evacuation-reconstruction plan, and therefore the claim in question is superfluous.
- During the conduct of the negotiations and the accompanying proceedings, the defendants incurred considerable financial expenses to which the plaintiffs must reimburse. In view of all of the above, the Supervisor is requested to order the dismissal of the claim in limine, as well as the removal of the appendices that were attached by the plaintiffs to the summaries unlawfully and in contravention of the Supervisor's decision, and to charge the plaintiffs with legal expenses and attorney's fees.
Discussion and Decision
- I will preface the beginning, and I will note at the outset that after reviewing the arguments of the parties and the law applicable to our case, I have reached the conclusion that the claim should be dismissed. And these are my reasons.
- The normative framework relevant to our case was set out in section 71B of the Real Estate Law, which states as follows: "71B. (a) Notwithstanding the provisions of section 62(a) or section 12(b) of the existing regulations in the addendum, a person who owns three-quarters of the apartments and two-thirds of the common property adjacent to their apartments, may decide on the removal of certain parts of the common property and attach them to a certain apartment, for the purpose of construction for the purpose of expanding that apartment, as well as to decide on the distribution of the building rights required for this purpose, but the subject of such the decision was the expansion of one or more of a certain apartment for the purpose of building an apartment protected space or a floor protected space, Those who own sixty percent of the apartments are entitled to decide on this.
00(b) A decision as stated in subsection (a) shall not be made if it is capable of harming the relative building rights of each apartment owner for expansion under this Article.