In order to complete the picture, I will note that in section 1 of the law, a "Pinui-Binui transaction" is defined as: "a contract between a developer and an apartment owner in a condominium, according to which the owner of the apartment in the condominium undertakes to sell his rights therein, in whole or in part, for the purpose of demolishing the condominium and erecting a new condominium in its place in accordance with the Pinui-Binui plan..."
And a privileged majority of apartment owners is defined as:
"The apartment owners in the Pinui & Binui Cluster, who own at least two-thirds of all the apartments in the Cluster, and also meet the following two:
(1) They own at least three-fifths of the apartments in each condominium in the same cluster, but in the case of a condominium that has only four or five apartments - they own at least three of the apartments in the condominium, and there are more than two apartment owners in the condominium;
(2) More than half of the common property in each condominium in that cluster is adjacent to their apartments;
- Inthe Schwarzberger case, the Supreme Court reflected the position expressed by the legislature in this law:
"In enacting the Pinui-Binui Law, the legislature expressed its position that the right of an apartment owner in a condominium is not absolute, and that the interest of the majority of apartment owners in a condominium and the public interest in encouraging evacuation and construction projects have sufficient power that justifies a proportionate harm to the property of the recalcitrant tenant."
This position embodies a balance that must be struck between the conflicting interests in the context of projects of this type - the interest of the majority of apartment owners and the public interest versus the damage to the property of the tenant who refuses to the project. This is in view of the fact that the right to property is part of human rights according to the Basic Law: Human Dignity and Liberty and therefore, it should only be infringed for a proper purpose and to an extent that does not exceed what is required, but at the same time, "the constitutional status of the property right does not mean that in any case in which it is at stake in the face of conflicting interests, the scales are tilted in its direction. It is not an absolute right, and sometimes an infringement of it will be recognized as necessary. (ibid. at paragraph 22).
- With regard to the property right of the individual in the context of a condominium, already in the explanatory notes to the Pinui-Binui Bill, it was noted that in balancing the interests between the public interest and the majority of the apartment owners and the property right of the opposing apartment owner, the relative weakness of the individual's property should also be reflected where we are dealing with the right to a condominium (the explanatory notes at pp. 198-199). In the Schwarzberger case , the Supreme Court (in paragraph 20 of the judgment) cited as relevant, in the context of the relative weakness of the property right in the present case, the words of MK Nissan Slominsky, in a discussion held in the Knesset on July 19,2005, in which the bill was approved in the first reading:
"... Although it appears that this is an entry into the private domain, the court has already ruled that anyone who purchases an apartment in a condominium... is accused of agreeing in advance to give up part of the proprietary autonomy that he has acquired and all the other things. Because as soon as he goes to live in a condominium, he defines himself in advance as one who accepts the partnership as part of the matter."
- Regarding the issue of the balance between the property's right of the minority in its apartment and the interest of the majority, which in my view also has implications for the manner in which the reasonableness of the minority's refusal is examined, I was required in a different appeal - Civil (Tel Aviv District) 13039-12-20 Yosef Nissani v. Amnon Habib (April 26,2021) (hereinafter: the "Nissani case"). I will note that the Nissani case revolves around an urban renewal project in accordance with the provisions of TAMA 38, i.e., one that is governed by the provisions of the Reinforcement Law, but what was said there regarding the nature of the property right of an apartment owner in his apartment is also relevant here. In the Nissani case , I opened and expressed my opinion that with regard to the substantive infringement of the rights of the minority, ostensibly, under the guise of proprietary protection of the rights of the apartment owners in the condominium, it is possible to block any initiative to make changes to the condominium. To this, it should be added that the basis of an apartment owner's objection to the project can be on the one hand for substantive reasons, and on the other hand, arbitrariness or a desire for extortion. In light of this, the court must examine the reasons of reasonableness, including the nature of the infringement of the property right, taking into account the essence of the concrete proprietary right. As to this right, I clarified in the Nissani case that I am a partner in the analysis, conclusions and decisions, as made by the Haifa District Court, by the Honorable Judge Cohen Other Municipal Motions (Hai District) 899-03-09 Sarah Kletzuk v. Zvi Oron (29/04/10) (hereinafter: "the Kletzuk case") (which was also reflected in the book by Micha Gidron and Aharon Namdar, TAMA 38 (5761), at pp. 437-439). Thus, at the outset, the Honorable Justice Cohen, in the Kalchuk case, found a distinction between two approaches with regard to the scope of the property right and its protection - the first being "property protection" - which is: "a basic right of great power. According to this approach, every person is entitled to do with his property as he wishes, subject to the limitations of the law, and a person is not entitled to harm the property of others. This approach also applies to the property rights of apartment owners in a condominium, both in relation to their property rights in the apartments they own and in relation to their property rights in parts of the common property. Within the framework of this approach, the construction of new apartments in the condominium "dilutes" the rights of the owners of existing apartments in the common property, and thus their property rights are violated. This also derives the right of each of the apartment owners to object to the construction of new apartments in the building. "
and the second is the "protection of liability" - ") or by its other name - the defense of liability), uproots the right of veto of the minority, which is liable to prevent the benefit to all the partners. However, where the benefit to the public causes harm to the minority, the minority will be entitled to receive compensation for the violation of its proprietary right. The exercise of the liability protection may, in appropriate cases, serve as an effective tool for balancing conflicting proprietary rights."