Many times title holders in a property wish to exercise additional building rights permitted under the plan applying to the property, when the question arises whether the rights are theirs alone and whether they adversely affect the property rights of the other title holders, giving them grounds to raise an objection to the application for a permit (which is likely to be accepted)?
It should be noted that this is a common situation, particularly when pertaining to a condominium where a neighbor wishes to exercise building rights that have not been exercised, and there is concern that this may detract from the possibility to take advantage of additional building rights belonging to the neighbors, or when the title in the lot is undivided (Musha), and in such case (assuming there is no partnership agreement regulating the manner of use of the lot and the building rights arising from it) there may be concern that since this is a “zero-sum game”, permitting the exercise of rights to one may derogate from the rights of another, and perhaps even in a manner exceeding the relative share of the applicant, when in such case we have a problem…
In such a case, the question to ask is ‘What are the chances of the objection that will be filed in this case with the local committee discussing the request?’ Will the planning authorities, even though this is an application that should be granted from a planning aspect, take into consideration proprietary questions and accept the objection thus implicitly refusing the permit application?!
It is important to recognize that these issues have extensive ramifications on the title rights in the property, as there is no doubt that building rights, whether exercised or not, constitute an essential element in determining the economic value of a property, and there is no doubt that detracting from the building rights available to the title owner, would almost certainly adversely affect its value.
It is clarified that the legislator was not blind to such situations, as in the case of a condominium, under regulation 2a (4) of the Planning and Building Regulations, where it was determined that the consent of the other joint owners of apartments to the request is required. However, some view the regulation as meaning that one can settle for the obligation to inform the owners of the apartments of the application so they can object, but that positive agreement on their part is not a prerequisite for receiving the permit… Proponents of said view, believe that the requirement for the consent of neighbors in a condominium gives them in practice veto rights, which may bring rise to irrelevant objections and encumber planning and building proceedings, not to mention delay construction and development processes, until these are practically frustrated (all of course assuming this pertains to an application that on the planning level complies with the provisions of the applicable plan).
Notwithstanding the latters’ position, the prevailing view in accordance with the position of the law and case law is that one cannot change the world, so that the planning institutions’ authority is limited to the discussion of planning issues, and they are not qualified to discuss proprietary issues.
As a result of the above, where the Committee believes that the applicant asking for a permit does not have “proprietary support” for the planning application (such as an application for building on common property), it must delay the application until a decision is made on the proprietary issue by the competent courts.
This approach stems both from the desire to avoid futile discussions in the planning aspects of the application, which may not even be possible to exercise, and the desire to avoid situations where the planning institutions are involved in proprietary aspects and issues, which – as stated above, they are not authorized to discuss in the first place. This exceeding of authority on the part of the planning institutions may have additional implications:
For example, granting a building permit for construction on common property, in the absence of “proprietary support” to do so, may actually legalize construction in contravention of the Lands Law and harm the rights of a partner in the property. Naturally, the above constitutes an additional and appropriate reason why there is no room for the planning institutions to rule or discuss planning aspects, without at first sufficiently clarifying the proprietary foundation of the applicant.
The heart of the decision in the question above lies in distinguishing whether this is a case where there is no doubt, question or dispute over property rights and a case where these rights were not sufficiently clarified.
Therefore, the current state of affairs, though sometimes difficult and cumbersome, in the overall picture and broad perspective is desirable and welcome. A discussion of the planning aspects of an application without “proprietary support” may lead to futile discussions, and moreover, encourage illegal construction, and one cannot agree to that, and it should not be allowed.
In sum, in the eyes of the author of this essay as well, the synergy between property law and planning and building laws, regardless of it being the dominant approach these days, is inevitable and the desirable one, and in the current state of affairs must be adhered to without any embellishments.
Comment:
This paper is for general and preliminary information only and is not intended in any event to be construed as legal counsel and/or as a substitute for legal counsel for any case and its circumstances.
The above must not be relied upon without consulting with a lawyer specializing in the field before taking any action or making any decision. The above is true only as of the date it was written, and its veracity may change from time to time.
Adv. Tal Rechnitz is a partner in the “Rechnitz, Kessler & Co. Law Office and Notary” operating in the field of commercial law, real estate and land taxation. www.rk-law.co.il
This paper is for general and preliminary information only and in no event can it be construed as a substitute for legal counsel for any case and its circumstances. The above is true only as of the date it was written, and its veracity may change from time to time.
This document and/or part thereof may not be used, distributed and/or reproduced and/or photocopied without permission.
This document may not be construed as consultation and/or any professional opinion.
