Discovered that they have rights in the roof - only following a lawsuit against the neighbors

Unusual ruling: The developer tried to win a building permit for 10 more apartments in the building, without stating that he does not have the full rights in the roof - and was stopped by the court. The owners of the ground floor apartment were hired

David Rosenthal

26/01/2022

Wednesday, January 26, 2022, 10:00 p.m.

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A fierce struggle for building rights on the roof of a shared building in Haifa was recently decided in the city district court.

The story begins about four and a half years ago, when three family members purchased a ground floor apartment in the building, unaware that the apartment owned 50 square meters in an unspecified area on the roof of the building. Two more apartments in the building, on the third floor, were sold by the same seller to other buyers. The sale, signed between the parties, it was agreed that the buyers would be transferred the full rights in the two apartments, except for those 50 sqm on the roof that belong to the owners of the ground floor apartment.

The sale agreement further stipulates that buyers will sign a declaration form that they waive the building rights of 50 square meters on the roof of the building and that they undertake that if and when they sell the apartments, the sale agreement will include an explicit statement of new buyers, who are also aware of waiving Building rights in the roof.

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In the written defense, the sellers of the apartments claimed that the existence of the appendix was omitted from their memory in good faith, but a few days after the signing of the sales contracts, they recalled the matter, and presented this fact to the buyer

The story began to get complicated, when the same buyers sold the two apartments to a real estate developer who wanted to build 10 more housing units in the building, as part of an urban renewal. Sqm of them belong only to the owners of the ground floor apartment.

The developer filed a claim for compensation of more than one million shekels, against the sellers of the apartments, after he claimed that he had suffered damages and losses, as a result of which they hid the appendix in the sale agreement, in which they declare that they waive the building rights.

In the written defense, the sellers of the apartments claimed that the existence of the appendix was omitted from their memory in good faith, but a few days after the signing of the sales contracts, they recalled the matter, and presented this fact to the buyer. According to them, he in turn informed them that despite this, he is interested in continuing the process of buying the apartments. Advocate Itai Grady, who represents the landowners in this Kafkaesque story, claims that it was only after filing the lawsuit against their former neighbors that it became clear to them, for the first time, that they have rights in the roof, and that these rights were never registered in their name. The apartments, the developer began to negotiate with his client regarding the purchase of their rights in the roof, but the negotiations did not mature into a written transaction.

This fact, according to Adv. Grady, did not prevent the developer from submitting to the Haifa Municipality an application for a permit to build 10 apartments on the roof, without their knowledge, without considering their rights. For a declaratory judgment, from the Haifa District Court.

In this context, Advocate Grady requested that the court determine that his clients have the rights in the area of ​​50 square meters of the permitted construction percentages in the roof area, and that this be legally registered, so that they too can enjoy compatible rights under future building permits.

"Absolute lack of good faith"

Adv. Itai Grady (Photo: Linor Levy)

In his application, Advocate Grady claimed that the developer acted in blatant bad faith, "while presenting the municipality with a false representation, as if he owns the full rights in the roof, thus submitting a false report, using complete bad faith with intent in the first instance." Not only did the developer present the municipality with a misrepresentation, he even increased to do so, when he approached all the tenants in the building for the purpose of signing an agreement to submit the application, other than the owners of the ground floor apartment, to whom he did not contact.

"Submitting the application for a building permit without the knowledge and consent of the applicants, is an attempt by the developer to carry out a snatch and establish his rights in the roof by obtaining a building permit ... The exclusive rights in the roof ", Advocate Grady argued in the application. He also referred to the lawsuit filed by the developer against the owners of the apartments on the third floor, and claimed that the developer is trying to hold the stick at both ends: Thus, in effect, he acknowledges that some of the building rights are not his. On the other hand, he is trying to establish ownership of those rights. And the building rights in the roof, "he argued.

Recently, Judge Hananel Sharabi of the Haifa District Court ruled that the landowners own the rights to certain parts in an area of ​​50 square meters of the permitted construction percentages in the roof, and that until they are registered as eligible land in the Land Registry, they are entitled to comment on the ruling. On the area of ​​eligibility by virtue of the Real Estate Law, in addition, Judge Sharabi ruled that the developer will bear the legal costs in the amount of NIS 10,000.

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