The question in the title of this article preoccupies many apartment owners in recent years. The increasing interest is a result of the the increasing trend of NBP 38/1 projects, namely seismic retrofitting projects. The projects are frequently executed by contractors or developers who receive, in return for executing the project, building rights in the condominium and utilize them to build several additional apartments, including on the roof of the building with the intention to sell these apartment to third parties.
The question at the heart of this article is based on two proprietary issues. The first – the right to join the roof of the building to the ownership of a certain apartment, usually located on the top floor of the building; the second – the utilization of exploitable building rights in a building given the applicable Urban Planning Scheme (Taba).
The combination of the two issues often creates confusion and sometimes disputes between apartment owners in the same buildings, since some believe that the owner of the apartment to which the roof is joined (subject to the consent of the other apartment owners and in accordance with the majority required by law) owns the exploitable building rights to build additional apartments on the roof.
Israeli statutory and case law clearly establish that the joining of a roof of a building to a certain apartment does not automatically entail the allocation of exploitable Building Rights on the same roof to that apartment. The reason behind it is that the building rights in the building are owned by all apartment owners and are considered part of their property. Therefore, to allocate the building rights to the owner of a specific apartment, at the expense of the rest of apartment owners, it is necessary to obtain the consent of all the tenants and record this allocation in writing in the condominium regulation.
Ownership of Building Rights According to The Court:
In recent months, in the case of Pall, the Haifa District Court decided on the issue discussed in this article.
In Pall, the court considered a situation in which a deceased couple divided in their Will the apartments in a condominium they owned between their two children. The Will stated that the plaintiff (their son) shall inherit all the building rights in the condominium, while the roof of the building was joined to one of the apartments that the defendant (their daughter) inherited.
The plaintiff’s claimed that since he is the sole owner of the building rights on the roof of the building, the roof must be joined to one of the apartments he inherited, so that he can exploite his rights. The defendant claimed that since the roof was joined to one of the apartments she inherited, she is entitled to utilize the building rights on it, since the roof is part of her property.
The court found for the plaintiff and stated unequivocally: “the joining of the roof shall not be deemed as inclusive of the, current or future, building percentage that pertain to the condominium. The joining of the roof to one apartment does not endow its owner with the right to build on the roof at his pleasure without the consent of other apartment owners in the building, but rather results in the fact that the roof ceases to be a part of the common property and becomes a part of the apartment. ”
Indeed, in the Pall ruling, the court extensively considered the proper interpretion of the Will as well as the intentions of the deceased, but nonetheless referred to the proprietary issue of whether the joining of a roof to one apartment necessary entails the allocation of building rights on the roof.
The court repeated earlier rulings of the Supreme Court, stating that “unexploited building percentages have economic value for apartment owners in a condominium, nonetheless they shall not be considered as part of the common property. The utilization of these rights only by one of the tenants in the building necessarily reduces the value of the other apartments. Therefore, the allocation of building rights to the owner of a certain apartment, which effectively expropriates this economic right from the owners of other apartments, should follow their consent (CA 136/63 Levinheim v. Schwartzman (published in Nevo 12.8.63) … The building rights derive from the ownership of the land, and since the land on which the condominium is located is jointly owned by the tenants, the building rights are owned by them jointly as well (From CA 432/83 Mizrahi v. Habib (published in Nevo, 9.12.86, emphasis added).
The Impact of Ownership of Building Rights on NBP 38/1 Projects:
As noted at the beginning of this article, there are often disputes between apartment owners in the same buildings who wish to promote a seismic retrofitting project (NBP 38/1), since the owners of the apartments joined to the roof of the building (unjustifiably) believe that they also have the rights to build on the roof.
Following a consistent caselaw by the courts, as in the Pall ruling, we know with certainty that there is no connection between the identity of the owner of the building rights on the roof and the owner of the apartment to which the roof is joined. In the typical situation, all apartment owners in a condominium commonly own the building rights, while only a single person owns the apartments to which the roof is joined. Consequently, for tenants of such a condominium to be able to take advantage of their building rights by building on its roof, the owner of the apartment to which the roof is joined must approve the construction (and perhaps receive additional consideration separately from the consideration received by other tenants) Alternatively, the roof ought to be part of the common property and not joined to any apartment.
It should be noted that there are cases in which the apartment to which the roof is joined is also allocated with the building rights, this, however must follow the consent of all the tenants and recorded in the rules of the condominium.
The law that has been prevailing for years is that the owner of an apartment to which the roof is joined does not necessarily have the building rights on the roof, unless these rights were explicitly allocated to him following the consent of the other apartment owners in the building.
We believe that the more apartment owners will be aware of this legal situation, the less neighbours’ disputes will erupt and less likely would be situations in which tenants whose apartments are joined to the roof “extort” other tenants in the context of a NBP 38/1 project or appropriate the building rights on the roof.
The Land Law, 1969, section 55(c)
 The Land Law, 1969, section 71(a)
 13293-11-14 Pall George v. Israella Peled (published on June 6th 2017)