The trend in rooftop building rights

A roof or garden attached to an apartment — who owns the rights?
As TAMA 38 projects become more numerous, apartment owners in condominium buildings increasingly ask who owns building rights on roofs and in courtyards, and what those rights are worth.
One source of condominium disputes is the ownership of building rights, particularly on roofs and also in common and exclusively attached courtyards. Attorney Uri Shiloh, a founding partner at E. Shiloh & Co. specializing in real estate, explains that under the Land Law, attaching a roof or garden area to an apartment does not give that apartment’s owner the building rights, only the right of actual use. For example, the right to use a roof for leisure is not the same as the right to build on it.
Ownership of an apartment and its attached areas is a property-law question, whereas building rights are governed by planning and building law; the two bodies of law do not overlap completely.
Building rights are generally shared among all apartment owners. Even where building rights have been assigned to a particular apartment, or unused rights exist for the building, the owners’ consent is still required to build on the roof or in the courtyard. Even if the Local Planning and Building Committee approves a particular apartment’s extension application, the other owners retain the right to oppose the construction on property-law grounds under the Land Law. Usually, that objection takes the form of a claim before the Land Registration Supervisor.
TAMA 38 construction is governed by special provisions regulating construction and earthquake strengthening, and it is easier for a majority of apartment owners to persuade the Land Registration Supervisor to rule against a refusing owner.
According to Attorney Uri Shiloh, condominium disputes are routine and considerably delay urban renewal projects. It is therefore important not to rely solely on oral agreements, but to regulate the allocation of common property and attached areas in the condominium bylaws under section 145 of the Land Law. The bylaws provide the framework and foundation for relations between apartment owners and should be registered with the Condominium Registrar.
Oral agreements may become worthless when the person who consented dies and the heirs deny the agreements. Disputes over whether such agreements existed have turned into bitter litigation.
In TAMA 38 projects, construction on common property is a frequent occurrence. What is common property? Everything that is not part of the apartments or areas expressly attached to them, and that is intended to serve all or most owners, including the building’s exterior walls, stairwells, elevators, roofs, courtyards and shelters.
Attorney Shiloh stresses that an apartment owner cannot sell an attached area separately except to the owner of another apartment in the same condominium. Such a sale attracts the ordinary taxes applicable to the sale of real estate other than a residential apartment. An attached area may be leased even to someone who does not own an apartment in the condominium, but that lease gives the tenant no right to build in the building.

To ensure that attached areas are not an unknown quantity, and to avoid disputes between an owner and a purchaser of an existing apartment who does not recognize the attachment, the condominium bylaws must be registered and expressly identify the areas attached to each apartment.