0
(c) The owner of an apartment that has been expanded will be deemed to have agreed to a similar expansion of any other apartment in the same building" (emphases here and hereafter, not in the original, M.P.).
- Section 71C(d) states that: "If the Supervisor sees that the right of an apartment owner has been violated, a material infringement, or that the real estate appraiser who was determined as aforesaid made a mistake, he may order the cancellation of the decision that was made, change it or condition it on conditions, all as he sees fit, whether by way of balance payments or otherwise, and he is also entitled to give instructions regarding the registration procedures at the Land Registry Office."
- According to the Real Estate Law, in order to expand an apartment, the consent of those who own 75% of the apartments and two-thirds of the common property adjacent to their apartments is required, and in order to build an apartment protected space, the consent of the owners of 60% of the apartments in the condominium is required. This majority is lower than the majority required to expand a regular apartment due to the purpose of the legislation to facilitate the construction of safe rooms as an essential security need that protects human life. The Real Estate Law created a balance between the various considerations within the framework of Section C1 of the Law, which includes the aforementioned sections 71B and 71C, while enabling the expansion of an apartment and the construction of a safe room by a reduced majority, while at the same time determining the rights of the apartment owners who claim harm due to such expansion. The legislature took into account the importance of building a safe room and therefore made concessions in this regard.
- The question arises, what is that "expansion" of an apartment? The answer to this is found in section 71A of the Real Estate Law, which defines "expansion" as "an increase in the area of an existing apartment in the condominium, for which a building permit can be obtained according to a valid plan". This means that the legislature recognized the possibility, under certain conditions, that an apartment owner would be entitled to build on parts of the common property, in order to expand his own apartment. Moreover, this right can be exercised even if there is no unanimous agreement on the part of all the apartment owners, but rather the consent of a special majority of them, as detailed above, is sufficient. In doing so, the legislature created a mechanism that enables development and change, while balancing the rights of the individual with the principle of the majority.
- As cited in the judgment in the matter of Civil Appeal Authority 1462/10 David Attia v. Lior Sagi (Nevo 2.8.2012) (hereinafter - the "Attia Judgment"), section 71B of the Land Law, is a late addition to the Land Law, as part of Amendment 18 of 1995. The purpose of this section, as reflected in the explanatory notes to the amendment, was to offer a solution to the difficulties of housing density that burden many families, by providing the possibility of expanding existing apartments, or alternatively, to deal with the problem of population density that is prevalent in certain areas of the country, by way of construction on common property.It was also noted that the current requirement, which is set forth in section 62(a) of the Land Law, which requires the consent of all apartment owners for the purpose of building and annexing parts of the common property, "constitutes a material obstacle and it is proposed to change it" (see the Land Law Bill (Amendment No. 19) (Changing the Majority Required for Changes in Common Property), 5755-1994, H.H. 114).
- The Attia judgment also noted that the Israeli legal system grants priority status to the protection of the basic rights of the individual. In this context, the right to property, as is well known, was enshrined as a constitutional right in section 3 of the Basic Law: Human Dignity and Liberty, and its normative status is not in dispute [(Civil Appeals Authority 6339/97 Rocker v. Salomon, IsrSC 55(1) 199, 238 (1999) (hereinafter: "the Rucker Judgment")]. However, it was emphasized that the right to property is not an absolute right and its protection is also not absolute [Civil Appeal Authority 7112/93 Tzudler v. Yosef, IsrSC 48(5) 550 (1994)].
- It should be remembered that the possibility of expanding an apartment despite the opposition of a minority of apartment owners is an exception to the rule that requires the consent of all apartment owners to remove part of the common property. Therefore, this exception should be interpreted narrowly, while minimizing the infringement of the property rights of the minority. (Paragraph 19 of the judgment Attia)
- The expansion of an apartment is therefore conditional on three cumulative conditions:
First, the condition of a proprietary majority is that a majority of 75% of the apartment owners is required in order to expand an apartment, whereas if it is an expansion for the purpose of adding a safe room, it is sufficient to obtain a majority of 60% of the apartment owners. This consent must be positive, clear and explicit, both with regard to the scope of the construction and with regard to its nature, in view of the fact that attachment or exploitation of building rights entails the permanent granting of these rights to the extended apartment [see: Civil Appeal Authority 259/99 Felice Reuven in Tax Appeal v. Sofiov, IsrSC 55(3) 385, 402 (2001); Civil Appeal 815/81 Khalifa v. Shaul, IsrSC 36(3) 78, 83 (1982); Appeal Petition/Administrative Claim 795/19 Taliat v. Tel Aviv District Planning and Building Appeals Committee (Nevo 15.7.2020)].