Globes, Dolphin Mintz-Carmon, Attorney 07.06.2020
Ten months ago, the land superintendent allowed Yael Antebi-Sharon, under specific circumstances, to attach parking or yard areas to existing apartments under TAMA 38/1, with the agreement of two-thirds of the apartment owners. A car park cannot be set up for existing apartment owners as part of a reinforcement project, but with unanimous consent.
In its ruling, the court makes a distinction between attaching land in the building to the developer apartments, and linking to the existing owner's apartments. When it comes to the developer apartments, the argument is that the linkage to these apartments is an integral part of the relationship with the developer, and is necessary to execute the project in order to produce the necessary economy. With regard to the existing apartments, it was determined that the project could be carried out without the same linkages. Consequently, it has been determined that 100% of the apartment owners are required for these linkages.
The outgoing worker is that a single apartment owner who objected to the implementation of a project prevented 17 other condominium owners from doing the same, after many years of work, toil and money invested by the developer.
This distinction seems to make no sense. The distinction between the existing apartment owners and the new apartments also seems problematic: In terms of the public interest, do we want to bring about a situation in which, within urban renewal projects, the new apartment owners will be granted a unique status in the building? And if the land can be used as an economic resource for carrying out the project, and it is possible to produce parking and even underground anyway, why is it that the rights of existing owners in the land will be subverted and will the construction of parking spaces only for new owners?
The court based its ruling on the provisions of the Reinforcement Act, which expressly held that for the purpose of carrying out works on the common property for the purpose of expanding the existing dwellings, a majority of 60% of the existing dwellings could be satisfied; However, for the purpose of building new apartments, ie the apartments of the developer and attaching areas to them, a majority of 2/3 of the apartment owners are needed. However, attaching an area to an existing apartment does not constitute an extension of an existing apartment and does not link to a new apartment.
In our view, the result reached by the court actually gives a veto right to a single apartment owner who can deprive him of substantial improvement and enjoyment of the land from all his neighbors.
In addition, the linkage of land to existing dwellings is often essential to creating a balance and equality between existing tenants, and preventing them from unduly causing unequal situations of extreme inequality between tenants and making it difficult to implement existing building projects. For example, it is often found that as part of a reinforcement project, only some of the existing apartments can be expanded, and often the balance reached by the parties is by attaching parking spaces to apartments that will not be expanded. However, according to the district court's approach, such a balance would seem to require the consent of all existing apartment owners.
Incidentally, although the court refrained from deciding on this issue, in view of the reasons for the ruling, it is difficult to see how parallel courtyard space in scope can be attached to the porch areas that will be added to the upper apartments, although this is requested for balance between existing apartment owners.