Penthouse Owner Can Expand Upward Without Giving Up Yard Access
Translated & summarized from Globes by baba
A Tel Aviv District Court ruled that a penthouse owner can expand their apartment onto the roof without giving up their right to use the building's yard. The court overturned a lower ruling that conditioned the expansion on granting exclusive yard use to ground-floor neighbors. The decision clarifies that apartment expansion requires 75% owner consent and that neighbors are not entitled to exclusive use of common areas like yards or roofs.
The story in 6 lines · by baba
- Penthouse owner can expand onto roof without forfeiting yard use, Tel Aviv court ruled.
- Expansion requires 75% of apartment owners' consent, or 60% for a safe room.
- Ground-floor neighbors are not entitled to exclusive use of the building's yard.
- Penthouse owner cannot claim exclusive use of roof areas not needed for expansion.
- Initial consent for permit application remains valid even if later withdrawn.
- Ground-floor owners ordered to pay 4,000 shekels in legal costs.
A Tel Aviv District Court has ruled that a penthouse owner can expand their apartment onto the building's roof without forfeiting their right to use the building's yard. The court partially accepted an appeal by the penthouse owner against a previous ruling by the Registrar of Real Estate.
The case involved a four-unit, two-story building in Bat Yam. The owner of the top-floor apartment sought to expand their unit onto the roof and build a safe room (Mamad). Initially, the other apartment owners agreed to the building permit. However, the ground-floor owners, a brother and sister, later withdrew their consent, claiming the penthouse owner had blocked access to the rear yard. The penthouse owner countered that the work was for maintenance and that the neighbors also used the yard without permission.
The Registrar of Real Estate had previously ruled that the penthouse owner could not expand unless they granted the ground-floor neighbors exclusive use of the adjacent yard. An expert appointed by the Registrar determined that the value of the rooftop expansion would exceed the value of the yard, even if the neighbors received full use of it. The Registrar presented the penthouse owner with a choice: build on the roof or relinquish use of the yard.
In overturning this decision, Judge Limor Bibi stated that the law requires the consent of all apartment owners for the assignment of property, and in the absence of such consent, the Registrar lacks the authority to divide the yard or roof between neighbors. She noted that such a division was impossible as only two of the four owners were parties to the proceeding. The judge further clarified that under the law, expanding an apartment onto common property requires the consent of 75% of the owners, or 60% if a safe room is being built. Since all four owners initially signed the permit application, the 75% threshold remained even after the ground-floor owners withdrew their consent, and the expansion did not exceed the permitted 160 square meters.
The court found no substantial harm to the neighbors and determined that the penthouse owner was not utilizing more than their rightful share of the common property, considering the extent of the yard and roof. The ground-floor owners were not entitled to exclusive use of the yard. The ruling also stipulated that the penthouse owner cannot claim exclusive use of roof areas not needed for the expansion, such as preventing the placement of storage or fencing off sections. Conversely, the ground-floor owners cannot claim unique use of the yard or block others from it. The ground-floor owners were ordered to pay 4,000 shekels in legal costs.