After reviewing the two possible protections for property - liability protection and property protection - the Honorable Justice Cohen turned in the Kletzuk case to examine which of the protections would apply where an apartment owner objects to a project in accordance with the Reinforcement Law - i.e., whether the property protection or liability protection will apply - and expressed his opinion that:
"The legislature sought to soften the proprietary protection given to the apartment owners in the condominium, by lowering the threshold of consent required to carry out work on the common property. To be precise: if the legislature had sought to leave the property protection in place in the case of work to strengthen the condominium against earthquakes, then there would have been no need to enact the "Reinforcement Law", since all the appropriate answers could have been drawn from the Land Law.
Therefore, and in my view, when we come to implement the "Reinforcement Law", we must change from the usual approach that guides us in protecting the proprietary rights of apartment owners in common property, and instead of acting according to the general concept of protection in real estate law, we must adopt the concept that was the basis of the "Zuedler Judgment"..... When the building permit is granted, and the minority still insists on its refusal to give its consent, the majority will appear before the Supervisor of Land Registration, and the Supervisor will examine whether equality has been violated, and whether the majority is acting in good faith, and whether the "depreciation" of the property rights of the minority is null and void compared to the benefit that accrues to it from the reinforcement work carried out in the house. ...."
The analysis conducted by the Honorable Justice Cohen in the Kletzuk case, regarding the weakened property right of an apartment owner in a condominium - is acceptable to me and relevant to my approach also in the context of the rights of an apartment owner in a condominium who opposes an evacuation-reconstruction project to which the provisions of the Pinui-Binui Law apply. This is because, too, in this last case, the legislature expressed its opinion that the threshold of consent should be lowered, in view of the importance of the projects, as well as (as is clearly evident from the explanatory notes as well as from the words that were voiced in the Knesset prior to the approval of the law) with regard to the weakened property right in which we are dealing (see also the Schwartzberger case at paragraphs 22-23). Alongside all of this, and in order not to be lacking, I find it clear and precise, with regard to the right of an apartment owner in a condominium, that the owner of such an apartment holds two rights - his right to his residential apartment and his right to the common property. Accordingly, the right of an apartment owner in a condominium can be seen as a combination of unique ownership and joint ownership. When the exclusive ownership extends to the apartment, while the joint ownership applies to the parts of the common property (see Yehoshua Weissman, Law of Property - Ownership and Partnership (1997), at p. 336). And the scope of the protection of the right to the exclusive ownership of the apartment owner in his apartment is not the same as the scope of the protection of the apartment owner's right of joint ownership of the common property. This is because it is clear that the protection of the first is stronger than the second. At the same time, it is explicitly clarified that the protection of the exclusive right of ownership of the apartment owner in his apartment is also not absolute, but that even with regard to it, evidence of erosion of the framework of the law can be found. Thus, and for the sake of example, the weakened nature of ownership even in the residential apartment finds expression in the fact that the rights in the apartment cannot be transferred separately from the rights in the common property. Support will also be found for what is stated in the arrangement set out in section 60 of the Real Estate Law, in the framework of which it is possible to force an apartment owner who is not interested in doing so, to participate in the expenses of renovating the house or to sell his apartment. Another expression of this will be found in the provision of section 2(b) of the existing regulations, and in accordance with it, an apartment owner may not make changes to his apartment that could lead to damage to his neighbor's apartment (for more information, see Weissman on pages 337-351). To all these provisions, which indicate a specific erosion of the property right where we are dealing with a right in a condominium, must be added the general provision that applies to a property right in accordance with the Land Law and set forth in section 14 of the Land Law, and in accordance with it as a rule: "Ownership and other rights in real estate, in and of themselves, do not in themselves justify doing something that causes harm or inconvenience to another." - i.e., which also teaches that the "arbitrariness of ownership" by virtue of the duties of good faith should also be limited (in this regard, see also the Schwartzberger case at paragraphs 26-28).