Jerusalem Court Rules Roof Belongs to Penthouse Owners, But Not for Events

A Jerusalem court has ruled that the roof above two penthouse apartments in a Jerusalem building legally belongs to the owners of those apartments, Eliyahu and Butzi Kanpler, but they are prohibited from using it as an event hall. Senior Judge Nail Mahana of the Jerusalem Magistrate's Court determined on October 5 that the roof was properly attached to the Kanplers' apartments. Simultaneously, he issued a permanent injunction forbidding any commercial use of the roof that involves receiving the public, such as a banquet hall.

The Kanplers' counterclaim for approximately 1.1 million shekels was entirely dismissed. The dispute involved two duplex apartments on the seventh and eighth floors of a building at 16 Shmagar Street. The plaintiffs, Asher and Rivka Yungreis, filed their lawsuit in February 2023, alleging that their neighbors had carried out extensive construction on the roof, including "breaking openings and demolishing walls," to establish a 200-square-meter event hall with a kitchen, pool, and restrooms. An interim injunction had halted construction in March 2023.

The core of the legal battle centered on ownership of the roof. The Yungreises purchased their apartment in March 2015. The Kanplers bought their apartment a few months earlier, in November 2014. A document from July 2014, signed by Zusha Goldklang, purported to sell the roof to Meir Mintzberg, from whom the Kanplers indirectly acquired their rights. The Yungreises argued this document was invalid, as the rights belonged to Reuven Goldklang, not his son, and that the transactions were not reported to tax authorities. They contended the roof was common property.

Conversely, the Kanplers presented documentation from the Israel Land Authority and the construction company indicating the roof was exclusively attached to their apartment. They denied any intention to operate a banquet hall, describing the roof as a "private balcony" for their family and offering to commit to this. The court also considered a previous arbitration where Asher Yungreis had claimed the roof was under Mintzberg's ownership, seeking contribution for its maintenance. Judge Mahana found this stance contradictory to the current lawsuit, citing judicial estoppel.

Judge Mahana's ruling stated that the roof was proven to be attached to the defendants' apartment and is not common property. He based this on the submitted documents and testimony from Asher Yungreis himself during a hearing, where he admitted that when he purchased his apartment, he was told the roof was not his and had been sold to someone else. The judge also noted that the attachment appeared in official land authority records.

The court denied the Yungreises' request for a permanent order preventing any use of the roof, stating there was insufficient evidence for a fear of future misuse beyond what was already prohibited. However, the judge did issue a permanent order against operating a banquet hall or any business receiving the public. Private use is permitted, provided any necessary permits are obtained. The Kanplers were also ordered to restore building systems like ventilation and fire suppression that were moved or altered during construction, and to ensure immediate, unimpeded access to a protected space (Mamad) for the Yungreises in case of emergency, as required by law. The Kanplers' counterclaim, which alleged the Yungreises built without permits, split their apartment into two rental units, and improperly utilized building rights, was dismissed. The judge ruled that the Kanplers failed to prove their claims regarding the alleged misuse of building rights and their financial value, leaving the issue of apartment division to planning authorities.