An owner with a permit to build on the roof need not give up his share of the yard

The owners of a ground-floor flat in a Bat Yam condominium demanded that their upstairs neighbour, who had a permit to extend his flat onto the roof, give up his share of the yard in return, and the Land Registration Supervisor made the construction conditional on that. The District Court cancelled the condition, held that the owner may build under his permit, and kept the yard and roof as common property that no one may take over.

What happened

The building is a two-storey condominium with four flats. The dispute was between only two of the owners: the owner of an upper-floor flat, which he inherited from his parents, and a brother and sister who jointly own a ground-floor flat. In practice, the ground-floor owners used part of the yard, while the upstairs owner used part of the roof and another part of the yard.

The upstairs owner applied for a building permit to extend his flat onto the roof and improve its protected space, and all four owners, including the ground-floor neighbours, signed their consent. The neighbours later withdrew their consent, claiming he had started work in the yard before obtaining a permit, poured concrete over pipes and blocked access to the water meters. They went to the Land Registration Supervisor and asked, among other things, for a declaration that he could not build on the roof as long as he did not give them exclusive use of the yard next to their flat. The upstairs owner counterclaimed for free access to the building's utilities.

With the parties' agreement, an expert was appointed, and he found that the right to use the roof was worth more than the whole yard. In January 2026 the Supervisor ruled that the common property belongs equally to all owners, but held that if the upstairs owner carried out his permit, he would have to vacate the entire yard. He was required to choose within 30 days between building and keeping the current situation, and was ordered to pay ILS 5,500 in costs. The owner gave written notice that he was giving up the construction, while appealing to the District Court.

The arguments on appeal

The owner argued that he had invested in the permit process relying on the neighbours' consent, that the Supervisor exceeded his authority by making lawful construction conditional on giving up rights in the yard, and that the expert opinion was wrong. He added that his waiver notice was sent under pressure, at a time when he had no lawyer.

The neighbours argued that there was no reason to interfere with the ruling, that the expert was neutral, and that the waiver notice bound the owner. They also claimed he had changed the lock on the yard gate and denied them access to the water meters.

The decision

The court explained that under section 55 of the Land Law, every flat in a condominium carries an undivided share of the common property, and in this building each flat is registered with a quarter of it. Attaching a specific part to one flat requires the consent of all owners, so the Supervisor has no power to divide the common property between neighbours, except under the exception in sections 71A to 71D, which applies when an owner wants to extend his flat.

Under that exception, a decision by the owners of three quarters of the flats and two thirds of the common property is enough. Here all four owners had signed; even after the neighbours withdrew, the consent of 75% of the owners remained, and the building permit had been granted. The Supervisor had not considered this exception at all.

The court held that in such a case the neighbours can object only on grounds of substantial harm to their rights or over balancing payments. No balancing payments were due, because the applicable plan allows every flat to reach 160 square metres and the extension does not exceed the owner's share of the common property. Substantial harm was not shown either: the neighbours' difficulty in building comes from the age of the building and the setback lines, not from the roof construction. The protection the law gives them is that an owner who has extended his flat cannot later object to a similar extension of theirs, not a right to receive part of the yard now.

At the same time, the court upheld the finding that, without the consent of all owners, no one has a right of exclusive use of the common property: the upstairs owner may not keep for himself parts of the roof not needed for the construction or fence and lock off part of the yard, and the neighbours may not put a shed there or block access to it. The court noted, without deciding, that the expert's calculations appeared to contain a substantial error, since the upstairs owner's building areas were counted almost in full while the yard areas allotted to the neighbours were counted as open space, as if nothing could be built on them.

The outcome

The appeal was allowed in part. The condition linking the construction to giving up the yard was cancelled, and so was the waiver notice. The owner may extend his flat under a valid permit, up to a total built area of 160 square metres. The costs order made by the Supervisor was cancelled; the neighbours must refund what he paid within 30 days and also pay him ILS 4,000 in costs of the appeal. A judgment given on appeal may be challenged only by applying to the Supreme Court for leave to appeal.

This article summarizes a published Israeli court decision in plain language and is not legal advice. Every case depends on its facts. The parties' names have been omitted. This is a first-instance decision and may be appealed.