Court Orders Neighbors to Return Encroaching Land to Family with Disabled Daughter
A couple who purchased a home in Holon in 2021 with the intention of demolishing and rebuilding it to accommodate their daughter's special needs, including her wheelchair use due to cerebral palsy, have won a legal battle against their neighbors. During the planning stages for the accessible home, a survey revealed that approximately 40 square meters of the couple's property were being used by the adjacent property. The neighbors, who had owned their home since 2009, did not dispute the measurement but refused to vacate the land. They argued they bought the property 'as is' and had relied in good faith on existing building permits and surveys, claiming the demand to reduce their yard and parking space was disproportionate.
However, the Tel Aviv Magistrate's Court ruled in favor of the new homeowners. The court-appointed surveyor confirmed an encroachment of 39.58 square meters onto the plaintiffs' land. The neighbors' failure to cross-examine the surveyor meant his findings were undisputed. The judge emphasized that a building permit does not grant property rights if the land itself is not owned. The court also dismissed the neighbors' claim of adverse possession, as the property was registered land not subject to standard statute of limitations laws.
Evidence suggested the fence was erected by the previous owners, the Cohen couple, who sold the property to the defendants in 2009. The previous owner admitted to not understanding survey maps and acknowledged that 'someone made a mistake' regarding the encroachment. The defendant also stated she did not conduct independent boundary surveys before purchasing the property. The judge's personal visit to the property, observing the limited space for the plaintiffs' daughter's wheelchair, reinforced the genuine need for the land's return.
The court ordered the neighbors to remove the encroaching fence and return the land to its official cadastral boundary by April 1, 2027. They were also ordered to pay the plaintiffs 20,000 shekels in legal costs. The court allowed the plaintiffs to pursue a separate claim for damages and usage fees from the date the neighbors became aware of the illegal occupation.
Furthermore, the court found the previous owners, the Cohens, partially liable for the situation. They were ordered to pay 50% of the costs associated with moving the fence, with the final amount to be determined upon submission of actual receipts. The defendants' third-party claims against various authorities were dismissed as no evidence showed their knowledge or approval of the encroachment.
