Globes, Adv. Gil Barzida, 14.03.2020

Many of the projects that require the Commissioner to intervene in the registration of joint homes are cases where the minority of owners feel (sometimes rightly) that the principle of equality has been violated.However, sometimes the principle of equality can be interpreted differently subjectively by the apartment owners and these cases require creative thinking outside the box in order to create a proper balance on which to base a project with a high consensus percentage.

The issue that was put on the inspector's desk in our case demanded its decision in an uncommon case - what about warehouses in a condominium in which the landlords seek to carry out a TAMA type 38 project?

The Rock of Controversy : The owners of the building in 9 Ha'ilu St. in Jerusalem signed with an entrepreneur to carry out a Tama 38/1 project (strengthening and supplementing the existing one) for the building. The existing building comprises 15 subdivisions, of which 11 subdivisions are defined as "apartments" and four subdivisions. - Plots are defined as "warehouses".

As part of the project, the residential apartments benefit from a main space for their apartments, which ranges from 16.94 square meters to 25.55 square meters, as well as the addition of a balcony and a warehouse, while the warehouse units do not receive expansion or extension according to the permit and agreement.

The owners of two subdivisions defined as warehouses filed an objection to a permit to the local Jerusalem Planning and Building Committee, which essentially argued that the defendant units were not expandable, but their opposition was not accepted. The Appeals Committee also rejected the objection, arguing that even if the place has been used for many years (and this is subject to factual dispute between the parties), it is not in fact the use to change the designation of the property in the building permit.

The allegations : The matter was rolled out to the superintendent of real estate, and in the proceedings before it, the defendant (the owner of the two subdivisions mentioned) argued that her units should be treated as a dwelling only for the following reasons: her units have actually been used as a "united housing unit" for decades unquestionably by my husband. The apartments, in a ruling given by the Magistrate's Court in a previous proceeding, stipulated that the defendant should be allowed to use her residential units, a separate entrance unit and all the essential elements of a dwelling (kitchen, heating, utilities, etc.), that the defendant purchased the units at a residential value and that the property was the perfect property. It is a property tax as a residential apartment, and therefore no study is worth the equivalent of who Other puzzles in the condominium are defined as "warehouses" in the building permit, as its units are used for residential purposes and are therefore entitled to the same consideration as the remaining residential apartments in the building.

Decision : The Land Commissioner determined that determining the issue of use of the residential defendant units could not constitute proprietary or planning permission for the defendant units to constitute a residential dwelling for all intents and purposes. Consequently, the fact that the defendant may use its residential units by virtue of a judgment does not change the designation of its units in the residential building permit, in a manner that requires the addition of a subdivision 38, as the warehouse is not entitled to receive or add to them. Eligibility of residential apartments. In order to change the designation of its units, the defendant is required to act lawfully in the proceedings with the planning authorities and by virtue of the planning and construction laws.

The Supervisor added that substantive equality is defined as equal to equal and different ratios. All of Defendant's claims are insufficient to recognize its units as a residential dwelling for the purposes of the TAMA 38, and therefore cannot be considered "equal" to the other 11 dwellings in the condominium that are designated for residence by building permit and dwelling records in the Land Registry.

Although it approved the claim of the other tenants and the promotion of the project, in the spirit of a compromise proposed between the defendant and her neighbors, the Supervisor allowed the defendant to adopt the proposal that the subdivision which she owns should be expanded in a gross area of ​​20 square meters, which would be an increase of 8 square meters. Expansion in a net area of ​​6.3 sqm (the extension will come at the expense of the existing shelter area).

Conclusion : The variance between different TAMA 38 projects creates a situation of more than one "truth" on the way to achieving the principle of equality for the realization of the project. The judgment described above teaches that effective and effective promotion of TAMA 38 and evacuation-construction projects requires participants to understand that compromise is A key to achieving the common goal and that a subjective self-righteous attitude is unnecessary (which in most cases will be stopped by the supervisor) that at best will delay the project and in other cases even prevent its implementation.

FSD Supervisor of Registration of Joint Homes in Jerusalem, File No. 3/340/2018