Expansion of an Apartment in Israel

In Israel, homeowners who own three-quarters of the apartments in a residential building can decide to remove part of the common property and attach it to a particular apartment in order to expand it. They can also decide how to distribute the construction rights required for this purpose. If the expansion is intended to create a Mamad (a protected room inside the apartment) or a protected space that belongs to the entire floor in a building (Mamak), 60% of the homeowners can make the decision.

Apartment owner who has already expanded their apartment is considered to have consented

According to the Israeli Land Law, an apartment owner who has already expanded their apartment is considered to have consented to a similar expansion of any other apartment in the same building. However, an apartment owner can object to this decision if they believe that the expansion would substantially infringe on their rights In this case, the parties can either agree to appoint a real estate appraiser to determine the value of the expansion, or they can appeal to the condominium inspector in Tabu (a judicial body regarding tenant rights).

In a building in city of Haifa, an apartment owners, Zvi and Gila Yogev, filed a lawsuit to demolish an addition to the building that was owned by Hana Steinberg-Nissen. The Yogevs claimed that the addition had been constructed without their consent, and that it substantially infringed on their rights.

Zvi and Gila argued that building a separate residential unit is not the same as expanding an existing apartment, and therefore requires the consent of all 100% of the apartment owners, not just 75%. They also argued that the expansions made by other apartments in the building are not similar to the expansion made by Hana, and therefore do not count as consent.

Hana argued that she has the right to build on her own property as she sees fit, and that she does not need the consent of the other apartment owners. She also argued that since Zvi and Gila have already expanded one of their apartments, their consent should be counted twice, once for each apartment.

The condominium inspector rejected Hana’s claims and accepted Zvi and Gila’s claim. The inspector ruled that since Hana was unable to prove that she had a building permit or that she could obtain one, she needed the consent of 100% of the apartment owners, not just 75%.

Hana appealed the decision to the District Court and then to the Supreme Court of Israel.

Does the consent refers to the owner of the apartment or to the apartment itself?

The legal question that was debated in the Supreme Court was whether a person who owns two apartments in a building and has expanded one of them is considered to have consented to the expansion of their neighbor’s apartment in relation to the expanded apartment, or in relation to both apartments.

This question is much broader than the one at hand, as it deals with whether the consent refers to the owner of the apartment or to the apartment itself. In other words, if the owner of an apartment changes, does the consent remain and bind the new owner who bought the apartment as-is, and did not carry out the expansion, but rather their predecessor in the apartment?

The court decided not to accept Hana’s appeal. Regarding the broader legal question, the judges emphasized that there is no need to decide on it at this time. However, they stated that, without establishing a binding decision, it seems to them that the consent should follow the apartment, not the owner.