Case Number

LCA 6339/97

Date Decided

12-23-1999

Decision Type

Appellate

Document Type

Summary

Abstract

This translation only covers the dissent by Justice Englard and a portion of the response by Justice Turkel.

Facts: The parties owned apartments in a four-apartment condominium. The Appellants submitted a request for a building permit to expand their apartment into the building’s common property, to which the Respondents objected. The local committee granted a building permit. The Respondents filed suit in the Haifa Magistrates Court, which granted a temporary injunction but ultimately denied the Respondents’ suit for a permanent injunction. An appeal was then filed in the District Court, which initially denied a request for temporary injunction, but later decided to bar the Appellants from continuing construction. The District Court granted the appeal, however, in the two-month interim period during which there was no injunction in force, the Appellants succeeded in completing the expansion of the apartment.

The Respondents instituted proceedings in the Magistrates Court for demolition of the addition. The court ordered the Appellants to restore the situation ad integrum, demolish any construction performed by them in the common property, and to pay the Respondents damages for suffering and loss of enjoyment of the common property. An appeal was filed in the District Court. In denying the appeal, the court held that any change in the common property requires the prior approval of a general meeting of the apartment owners; that any construction in the common property without consent is an infringement thereof, and constitutes a permanent deprivation of its use by the other apartment owners; and that a building permit does not itself legitimize construction involving infringement of the property rights of other apartment owners in the common property.

In seeking leave to appeal, the Appellants did not dispute the legal presumptions of the trial court. Their main argument was that the circumstances of the matter do not justify an order to demolish the structure unlawfully built on the common property. Rather, the court should exercise discretion in regard to the remedy of demolition. Inasmuch as the questions as to whether a court has such discretion in the case of construction on another’s land, and if so, how to exercise it, were new and of significant legal importance, the Appellants were granted leave, and the appeal was heard by an expanded panel of seven justices. The appeal was denied (per Justice J. Turkel, President A. Barak, Justices M. Cheshin, E. Mazza, S. Levin concurring, T. Strasberg-Cohen concurring and dissenting, Justice I. Englard dissenting).

Justice I. Englard (dissenting):

In his dissent, Justice Englard addressed the question of whether a court has discretion in regard to the remedy of demolition of an unlawful structure built on common property.

In exploring the issue of abuse of right, Justice Englard turned to Jewish law and the concept of “kofin al midat s’dom” [“one may be compelled not to act meanly”]. The conception is that when a person deprives another of benefit, where that benefit costs him nothing, his conduct is deemed midat s’dom, and the law will compel him to desist.

In the opinion of Justice Englard, it is only proper that Jewish law serve as a source of inspiration in interpreting the provisions of sec. 14 of the Land Law. It would be appropriate that the clear moral tendency found in the Jewish legal tradition in regard to the concept of ownership, the purpose of which is to limit a person’s rule over his property, would find expression in the law of the State of Israel as a Jewish and democratic state. In addition to the personal moral dimension of the rule “kofin al midat s’dom”, the rule also comprises what may be a more important social dimension.

Justice Englard was of the opinion that a demolition order would constitute an abuse of the property right in the common property. Demolishing the addition to the apartment, demolishing the storage units built in accordance with a building permit, and restoring the situation to its original state do not stand in a reasonable relationship to the – somewhat abstract – fundamental interest of the Respondents in maintaining the totality of their right in the common property. The balance of interests clearly tends in favor of preserving the existing situation, while awarding damages to the other residents for the infringement of their right to use the common property.

Moreover, it would appear that the solution of awarding damages rather than ordering demolition is also consistent with the Jewish law approach under the principle of “kofin al midat s’dom”. Although the owners suffer some loss of the use of the common property, in light of the “beneficiary’s” willingness to pay for the use of the common property it would seem that demolition of the structure would, under the circumstances, constitute midat s’dom that might, perhaps, also comprise an element of “bal tashhit” [“do not destroy/waste”].

Justice J. Turkel:

In responding to Justice Englard, Justice Turkel agreed that the principle of “kofin al midat s’dom” is an important principle in Jewish law’s rules of equity. But this rule does not have the power to uproot a positive commandment of the Torah, and the Torah expressly states: “You shall not move your neighbor’s landmarks, set up by previous generations, in the property that will be allotted to you in the Land” (Deut. 19:14). Moreover, an examination of Jewish law sources appears to show that the principle was not employed in a manner that infringes rights in real property. Thus, the principle “kofin al midat s’dom” cannot serve the Appellants, who built unjustly and unlawfully.

Keywords

Property, Jewish Law

Download

Share

COinS