The third situation detailed by the expert, which is relevant to our case, is where there are building rights for all the apartments - some of the apartments have taken advantage of them and some have not - i.e., there remains a right to build for expansion in relation to subplots for someone who has not yet expanded his apartment. As to this situation, the expert noted that in his view, a decision taking into account these rights should be examined, inter alia, taking into account the issue of feasibility for the execution of the building addition in accordance with the provisions of the Land Law, 5729-1969 (hereinafter: the "Land Law"). In this regard, the expert referred to the provisions of section 71B (erroneously referring to the provisions of section 72B) of the Real Estate Law, in which the majority required for the expansion of an apartment was determined, and it was also determined that a tenant who has expanded an apartment himself cannot object to a similar expansion by any other apartment owner in the condominium.
On the merits, the expert determined as a starting point that on the normative level, subject to the aforesaid, the unused building rights should be taken into account in principle as an addition to the area of the apartment itself.
Subsequently, the expert turned to the determination of the coefficient for the addition of the area in respect of the unused building rights. With regard to the determination of this coefficient, the expert began by noting that this is a determination in which not only the appraisal aspect but also the intensity of the change in exchange for the addition of area for apartments that were not expanded in relation to the consideration for all the apartments must be incorporated. This is because this is a right that does not stand on its own but constitutes part of the consideration, and therefore, even in determining the appropriate coefficient for the building rights, the principle of equality of consideration in its entirety must be taken into account. Therefore, the expert determined that the determination of the coefficient should be qualified in such a way that the greater the average addition of area to the existing expanded apartments, the higher the coefficient should also be given to the unused building rights, and where no additional area was given to the existing expanded apartments, the coefficient should be reduced.