Legal Updates

In an agreement that includes an explicit waiver of building rights an implied consent to waive future rights is sufficient

January 24, 2024

Apartment purchasers in the purchase agreements the right to the building rights “at all times”.

The Court rejected the purchasers’ contention that bulding rights that did not exist at the time of purchasing thea ppartments belong to them and determined that the consent in the sale agreement also includes forgoing future building rights. Building rights, including future ones, constitute an "asset" that is different from the real estate and the common property and, in the absence of an opposing contractual agreement, are granted to all the tenants of the condominium, each according to the proportion of their holdings in the real estate. While a waiver of existing building rights requires a clear and explicit consent by the relinquisor, where there is already an explicit waiver of the existing building rights in the sale agreement, it is possible to learn about a waiver of future building rights even without explicit consent in the agreement. Here, the sale agreements include a clear and explicit reference that the properties are sold without the existing building rights. Therefore, it is sufficient that the waiver in the agreement includes a reference to the fact that it is building rights that will exist "at all times" in order to determine that the intention of the parties was to waive the future construction rights as well. Therefore, the purchasers waived the existing and future building rights.