Second, a planning condition requires the feasibility of obtaining a building permit for the requested expansion, in accordance with a valid plan [regarding the relationship between the planning proceeding and the proprietary proceeding, see judgment in the matter of the Land Supervisor Petah Tikva 659/20 Adv. Nahmias Shulamit v. Ghibli Erez Ezra (Nevo 14.03.2022)].
Third, the existence of physical proximity - the requested expansion must be connected to the existing apartment as a natural continuation of it, in such a way that the expansion will be an integral part of the expanded apartment [Atieh Judgment; A. Eisenstein, Foundations and Laws in Real Estate Law, Part III - Condominiums, p. 223].
- Indeed, there is no dispute that compliance with the three cumulative conditions set out in the law constitutes a cornerstone in the decision-making process. However, and this is the main point, this does not seal the legal discussion, and it should not be seen as the "end of the story" that grants the majority an absolute right to build at any price. If the minority succeeds in proving a "material infringement" of its rights and the existence of a less harmful alternative, or if the majority's decision is tainted by bad faith, the Supervisor may intervene and not allow the expansion to be carried out [see, for example, (Land Supervisor Haifa) 20/24 Khoury Doris v. Moskowitz Miriam (Nevo, January 26, 2024)].
Applied to our case, the plaintiffs meet the conditions of the required proprietary majority, but do not meet the planning conditions
- As for the proprietary majority, indeed, there is no dispute that the plaintiffs met the requirement of the proprietary majority, since they presented the written consent of three-quarters of the apartment owners in the condominium, who constitute 92% of the common property, to carry out the building addition. The defendants, it seems, are the only apartment owners who refused the request for an extension (see Appendix 4 to the statement of claim).
- However, the situation is different with regard to the planning aspect - according to section 71A of the Real Estate Law, a person wishing to expand his apartment must prove planning feasibility on the part of the authorized planning institutions.
- In our case, there is no dispute that the decision of the Local Planning and Building Committee of August 25, 2022 accepted the defendants' objection to the construction of the safe room. The Committee's reasons, as detailed in its decision, were as follows: " The committee does not approve building expansions that cause damage to another adjacent property. 2. The construction of the safe room in accordance with the instructions of the Home Front Command changes the existing construction on the ground floor that was built in accordance with building permit No. 2015075 issued in 2016 to expand the property by about 15 square meters. The applicant's expansion significantly reduces the house on the ground floor and divides the space, and therefore without the consent of the neighbor is not possible. 3. Without a safe room, it is not possible to expand the house with rooms on the roof, and therefore the request for additional rooms on the roof is also rejected."
- The plaintiffs' very claim that they should be allowed to apply for a building permit shows that they are well aware of the lack of a building permit in their hands. This was even explicitly expressed in the minutes of the hearing, where it was stated: "... We request, inter alia, to instruct the defendants to refrain from unreasoned objection and to allow the plaintiffs to submit an application for a permit in order to establish a dimension and expand their apartment. I'm talking about the permit to build a safe room..." (p. 4, paras. 9-11).
- It therefore emerges that the plaintiffs did not meet the required planning threshold, and this is sufficient to bring about the rejection of their claim. However, for the sake of the completeness of the picture and a comprehensive examination of all the aspects that were raised, I will also address the other arguments of the parties.
The defendants' argument regarding the material harm that will be caused to them as a result of the expansion of the plaintiffs' apartment was not contradicted
- I am aware that the defendants claim infringement of their proprietary rights, but this claim was not raised by them in the framework of an independent lawsuit, while the expansion did not pass the threshold conditions, including the planning condition. However, as stated, I will also examine the defendants' claim regarding the material injury.
- As stated above, in cases where it has been proven that the requested construction (even if it is a safe room) will cause severe and unreasonable damage to the objector's apartment, the supervisor may not approve the construction as requested.
- Before examining the alleged substantive infringement, it should be noted that the Real Estate Law establishes additional checks and balances with respect to the expansion of an apartment, beyond the requirement of the proprietary majority. Thus, for example, section 71B(b) of the Real Estate Law places a rigid exception to the decision of the majority, stating that a decision on the expansion of an apartment (including the construction of a safe room) will not be made if it is likely to infringe on the relative building rights of any other apartment owner for expansion. This provision is intended to ensure that the distribution of building rights is maintained in a proportional and fair manner among all apartment owners, in such a way that the expansion of one apartment will not come at the expense of the future ability of another tenant to exercise his relative share of these rights.
- Therefore, the defendants' argument that their private property has been harmed and that the expansion should not be permitted constitutes an admissible objection under the provisions of section 71B(b) of the Land Law. Admittedly, this section, as stated, establishes an explicit prohibition on making an expansion decision if it is likely to infringe on the relative building rights of another apartment owner. However, in addition, it is necessary to examine whether the objector has caused another material injury, which is not necessarily an infringement of relative building rights.
- Section 71C(d) of the Land Law states, as stated: "The Supervisor deems that the right of an apartment owner has been violated, a material violation... He is entitled to order the cancellation of the decision that was made." "Material harm" for the purposes of this section was defined in the book "Foundations and Laws of Real Estate Law" by the scholar A. Eisenstein, part three, on page 218, as a permanent and ongoing injury that causes an apartment owner physical or mental suffering that a reasonable person would not be willing to accept even in exchange for adequate compensation [see also Civil Appeal (Tel Aviv) 133/97 Clara Yusovich v. Tzila Chai (Nevo, October 3, 1999), which deals with material harm with regard to the installation of an elevator in contravention of the position of the minority of apartment owners].
- In the judgment in the matter of a different appeal - civil (Haifa) 3181-09-13 Jumana Agbaria Hamam v. Charlie Khoury in paragraph 17 (Nevo, June 16, 2014), it was held with respect to the application of the aforementioned section 71C: "Hence, according to the provision of section 71C of the Land Law, where the expansion of the apartment is likely to cause harm that exceeds what is required from the realization of the public interest in the expansion of the apartment, while causing disproportionate harm to another apartment owner in the building, it is not possible to realize the requested expansion."
- This conclusion is consistent with other obligations that apply to apartment owners in a condominium, including the obligation of an apartment owner to act in good faith in exercising his proprietary rights, as well as the provision of section 2(b) of the existing regulations in the addendum to the Real Estate Law. This provision, which applies to the condominium, states that an apartment owner is not allowed to make changes and repairs to his apartment that damage another apartment without the consent of the other apartment owner. Even if the legislature allowed, with respect to the expansion of an apartment, a reduction in the right of the injured apartment owner in this matter, I am of the opinion that when it comes to an infringement that exceeds what is required, this strengthens the claim of the injured apartment owner that this is a material infringement for the purposes of section 71C(a) of the Land Law. To this must be added the duty of good faith, which means that the protection of the self-interest of an apartment owner must be fair and taking into account justified expectations and proper reliance on the other party (see the Rucker ruling).
- In our case, there is no contradiction in the defendants' explicit argument that the requested extension, according to its current planning, will lead to an almost complete blockage of three windows in their apartment, if the safe room is built in front of the house (see also p. 3, paras. 27-28 of the minutes of the hearing). Such a blockage is not a trivial matter; It causes real and irreversible damage to the natural light, ventilation and the view from the defendants' apartment, thereby changing its character and quality of life. Moreover, even if another alternative is chosen, whereby the safe room will be built at the back of the house, the requested construction will damage the defendants' children's room (see also p. 5, paras. 31-42 of the minutes of the hearing). This injury, whether it is expressed in a reduction in the room, an internal structural change, or a material disruption to its use, also constitutes an intolerable intrusion into the defendants' private space. These claims, despite their severity, were not denied by the plaintiffs, not even in their summaries.
- It therefore emerges from the aggregate that the plaintiffs' right to expand their apartment, even though it is an important right enshrined in the law, cannot justify such drastic and harmful structural changes within another apartment, and in particular without the consent of the owner. The plaintiffs have no right to carry out construction work that would block such a significant part of the windows of the defendants' apartment, and they certainly have no right to carry out any work inside the defendants' apartment itself, without their explicit consent. These actions, according to their nature and results, amount to "material harm" as defined in section 71C(d) of the Real Estate Law, and as interpreted in the case law. This infringement deviates from the reasonable and proportionate, and is inconsistent with the duty of good faith imposed on apartment owners in a condominium. Therefore, even if the plaintiffs have the majority necessary to carry out the expansions, this does not approve them, since the majority cannot significantly infringe on the substantial property rights of the minority.
Even if the expansion of the defendants' apartment is considered a 'similar expansion', it does not have the power to overcome the substantial harm
- The plaintiffs' argument that the defendants made a "similar expansion" in their apartment within the meaning of section 71B(c) of the Land Law, and therefore they should be seen as agreeing to the requested expansion, should be rejected. Section 71B(c) of the Land Law does indeed establish a presumption of consent in cases of "similar expansion", and its purpose is to prevent a situation of "mutual coercion" or "sodomy", in which an apartment owner who has made an expansion himself will prevent another landlord from carrying out a similar expansion. However, this purpose, important as it may be, is not unlimited and cannot serve as a permit to cause material harm. The provision of section 71B(c) of the Real Estate Law cannot legitimize a material infringement of the property rights of another landlord. The guiding principle in property law, and in particular with regard to condominiums, is that the realization of the right of an apartment owner cannot come at the expense of an unreasonable and substantial infringement of the rights of another landlord. The threshold of material harm constitutes a red line, beyond which the presumption of consent is invalid, nor even explicit consent, if it was given in contravention of the law or disproportionately harms. The protection against material harm is a basic principle of property law, which balances between the owner's freedom of action and his duty not to harm others.
- In this regard, I accept the reasoned words of the Honorable Supervisor of Land Registration, the late Avital Schreiber, in her judgment in the matter (Land Supervisor Jerusalem) 28/23 Eliav Zehava v. Ruth Netanyan, at paragraph 18 (Nevo, August 15, 2024). The Honorable Supervisor ruled there that "even if plaintiffs 1-2 had built an extension 'similar to' the one that the defendants wish to build, this would not have led to the conclusion that the defendants are entitled to carry out an extension that substantially harms the apartment of plaintiffs 1-2." This determination faithfully reflects the proper balance between the principle of reciprocity, which is enshrined in section 71B(c) of the Law, and the protection of property rights against material harm. The principle of reciprocity cannot render the substantive protection of the property right meaningless. I am of the opinion that even if the expansion that was carried out in the past in the defendants' apartment could be viewed as a "similar extension" within the meaning of section 71B(c) of the Law, it would not have cured the material damage that may be caused to the defendants' apartment as a result of the expansion requested by the plaintiffs. The presumption of consent in section 71B(c) cannot override the prohibition of causing material infringement, since its purpose is not to allow infringement of basic rights, but rather to promote reciprocity in cases where there is no such infringement. Where a material infringement is caused, the principle of reciprocity withdraws from the protection of the right to property, which is a basic constitutional right.
The plaintiffs did not prove their claim that the expansion made in the defendants' apartment was in violation of the permit
- As to the plaintiffs' claim that the expansion made by the defendants was carried out without a permit - I will note that contrary to the defendants' claim in their summaries, this claim did arise in the statement of claim (paragraph 38). However, this claim was made in vain and not proven. I have examined the building permit that was given in relation to the expansion of the defendants' apartment (Appendix 1 to the plaintiffs' summaries), and I did not find in it any reference to the plaintiffs' claim in relation to the manner of construction and the building materials, including with respect to light construction (see also pp. 3, 42-49 of the minutes of the hearing), so that not even the first evidence was brought that the construction carried out by the defendants was without a permit, and of course the way is open for the plaintiffs to proceed in the appropriate proceeding. and subject to any law.
- To this must be added another essential layer: the plaintiffs purchased their apartment with full awareness, both of the fact of the existence of the extension in the defendants' apartment, and of the fact that their apartment does not include a standard apartment protected space (safe room). Indeed, this period, with its security challenges, illustrates even more strongly the existential need for a standard and accessible protected space, and its importance should not be underestimated. However, as stated, accepting the plaintiffs' claim in these circumstances will cause material and disproportionate harm to the defendants' proprietary rights, and will harm the existing balance. Such an infringement is inconsistent with the principles of justice and fairness, and should not be allowed in the circumstances of this case.
Conclusion
- In light of all the above, the claim is dismissed.
Expenses of the Proceeding
- With regard to the costs of the proceeding, it is a rule in Israeli law that a party who loses in the proceeding will be liable for the expenses of the opposing party (Civil Appeal 9648/16 Orhitech GIS in Tax Appeal v. Chen Avitan Law Offices, at paragraph 67 and the references therein (Nevo, February 28, 2018). This rule was also reflected in Regulation 151(a) of the Civil Procedure Regulations, which states that "the obligation of a party to pay is intended to indemnify the opposing party for its expenses in the proceeding, taking into account its results, the resources required to manage it, and the conduct of the parties." With regard to the amount of expenses, the subordinate legislator determined that the trial court would take into account, inter alia, "the value of the relief awarded and the ratio between it and the amount claimed, the manner in which the parties conducted the hearing, the complexity of the proceeding, the investment of resources in its preparation and management, and the amount of expenses requested (Regulation 153(c) of the Regulations) (see also Civil Appeal 7627/20 Eisler Management Company in a Tax Appeal v. Tefen Medical in a Tax Appeal (Nevo 24.02.2022)).
- Applied to our case, after I considered the arguments of the parties in accordance with the criteria outlined in the case law and gave my opinion to the totality of the circumstances of the case, including the Bar Association Rules (Recommended Minimum Rate), 5760-2000, I decided that the plaintiffs must pay the defendants the costs of the proceeding, in the total sum of ILS 7,500. This sum will be paid by the plaintiffs to the defendants within sixty days from the date of the judgment, otherwise interest and linkage differences will be borne from the date of the judgment, until the date of the actual full payment.
The Secretariat will provide a copy of the judgment to the parties' counsel as is customary.