Civil Case (Tel Aviv) 25510-11-24 Cohen Naftali v. Israel Hazemi - part 24

Accordingly, to the extent that there are quantitative differences in the original apartments - i.e., where the apartments are of different sizes, it can be determined - in appropriate cases - that equality also exists where different apartment owners have been granted different additions of space.  I am of the opinion that this determination is particularly relevant in cases where the condominium was demolished and rebuilt.  This is given that in accordance with section 52 of the Real Estate Law, the rate of ownership of each apartment owner in the common property is a derivative of the area of his apartment relative to the area of the other apartments.  Accordingly, when the condominium is demolished, so are the rights of the apartment owners in the land on which the condominium was built.  Therefore, a determination that owners of larger starting apartments - who even have a larger ownership rate in the land from the outset - will receive a larger increase, which corresponds to the proportionality in the rate of ownership in the land - is prima facie consistent with the property rights of the various apartment owners, and therefore does not violate the equality between them.  It should also be remembered in this context that indeed, as part of my reasoning regarding the determination of the substantive-quantitative test, I noted that this test is consistent with the nature of the incentives in accordance with TAMA 38, which are also quantitative incentives, which on the face of it do not distinguish between the initial value of the various apartments or their size.  At the same time, it should be emphasized in the context of this two: First, that although various incentives were set out in the framework of the NOP in the form of additional areas, these incentives that were set out in the plan do not constitute vested rights, but rather they are maximum incentives that are subject to the discretion of the planning institution (see Micha Gidron and Aharon Namdar, TAMA 38 (2012), at pp.  337-339 and appeal petition/administrative action 7381/15 S. Dorfberger Ltd.  v. Avraham Oded [published in Nevo] (October 30,2016) at paragraph 31)).  Accordingly, in many cases, the planning framework does not receive the full package of incentives set out in the TAMA.  To this, it should be added that naturally, the TAMA agreement is the result of negotiations that embodies balances between the requirements of the various apartment owners and the possibilities deriving from the economic and planning constraints of the project.  In light of this, I am of the opinion that it is possible to embody the legitimate demands of apartment owners with substantially different characteristics - such as the demand of the owner of a larger starting apartment to receive a larger addition of space, or of an apartment owner with special attachments to receive a consideration apartment that will reflect the uniqueness of his apartment."