Who Owns the Roof?

Buying roofs in condominium buildings and attaching them to a particular apartment is nothing new. But disputes over new construction on existing roofs have increased in recent years. One reason is the shortage of building land and the economic attraction of extending apartments by building on the roof, including outside earthquake-strengthening projects. Attaching a roof to an apartment does not always give its owner automatic building rights. Court rulings generally hold that the opposite is true.   Condominiums contain two types of property: private and common. Private property generally consists of the apartment and its appurtenances: balcony, roof, yard, parking space, storage room and so forth. Common property includes the lobby, staircase, elevator, shared yard and similar areas. Attaching common property to an apartment creates a hybrid: it has private-property characteristics, namely registered ownership and use, yet the owner cannot do whatever they wish with it. In this respect, it retains common-property characteristics dependent on the consent of the building’s other rights holders.
A condominium roof is common property that can be attached to top-floor or other specified apartments. Although this grants certain rights and considerable economic value, it does not automatically transfer roof-building rights to the apartment owner. For example, a plan permitting rooftop construction was held not to justify charging lower-floor apartments a betterment levy: a district appeals committee prohibited Holon Municipality from charging sellers of apartments other than top-floor units betterment levies for rooftop building rights.
In one case, the Haifa District Court (CA 60555-01-14 Sasson Bar Oz v. Daniel Ster) held that although the roof was attached to the appellants’ apartment, section 71B of the Land Law prevents extending a condominium apartment using unused building rights without the consent of a majority of residents, even if the extension does not exceed that apartment’s proportional share of the building rights. The applicants argued that the deceased owner of two apartments in the four-apartment building had consented to rooftop construction. The court found that consent unproven and dismissed the application. It adopted the Supreme Court’s position inCA 7156/96, Yaakov and Berta Shua’i v. Daniel Bachrach, which held that “as a rule, a distinction must be drawn between attaching part of the common property to an apartment and the owner’s right to build on the attached area. Attachment grants ownership of that area, but does not itself create a right to build there. Condominium building rights belong, by virtue of joint ownership of the land, to all apartment owners, and their use by one owner requires the others’ consent”.
In Land Registration Appeal 22123-10-10 Zinger et al. v. Hadad et al. the Haifa District Court held that “building a room on a condominium roof changes the building’s architectural and visual character. Its appearance has value, which apartment owners are entitled to preserve. Moreover, rooftop construction impairs the potential use of common property, including strengthening the building against earthquakes under National Outline Plan 38, since constructing a rooftop room would frustrate participation in that plan. Granting such permission also amounts to discriminatory exercise of rights to additional rooftop construction.”   How, then, can rooftop building rights be secured?
Attaching a roof under section 71B(a) of the Land Law enables the apartment owner to build on the attached property without further consent.
The Tel Aviv District Court considered this issue in another case (Civil Case 1033-09). A dispute arose between the owners of the rooftop apartment, who had purchased both the roof and future building rights, and the remaining residents. The latter argued that the attachment did not include all future building rights. The District Court held that the agreement and condominium bylaws granted those future rights to the top-floor owners and therefore permitted construction. The judge stipulated that future construction must not reduce the roof area existing beforehand, applying the principle that common-property area cannot be reduced without all residents’ express consent.
The court held that proprietary rights are allocated in the condominium registration order, the land-register extract and the condominium bylaws, which record attachments of common property agreed to by residents. Building rights not granted to a particular resident belong to all residents, whose consent is required for changes to common property.
For earthquake strengthening under National Outline Plan 38, the legislature relaxed the majority requirement to 66% for strengthening and 80% for demolition and rebuilding.