Legal Ground: What goes up?

By JERUSALEM POST STAFF
What's to fight about an elevator? Except for the name given to what was previously a lift by the Otis Corp. and universalized by the American Legislator, there doesn't seem much ground to argue. Wrong, again. To paraphrase Solomon, where there are lawyers there shall be lawsuits. Even in elevators - and lifts. Seriously, the law in Israel looks kindly on elevators. The planner would like to see elevators in every apartment building, but the regulation relieving new buildings less than five stories high from requiring one remains in effect. Many older buildings with less than five floors are home to older people and, as many of us know, the steps somehow become steeper and higher as we get older. And so the planning commissions have adopted a positive disposition toward requests to grant permits for erecting elevators in older, shorter, existing buildings. As opposed to the "three-quarter" requirement for many cooperative house (bayit meshutaf) matters, erecting an elevator on the shared property of an apartment building can be approved with just two-thirds of the tenants in agreement. Did someone say "agree"? Well then it's time to fight. In a building in Jerusalem a couple wished they had bought their apartment in a five-story building. Had they, they would have an elevator. But they hadn't, and so turned to each of the neighbors and asked each one separately for their agreement to have an elevator installed in the building. After a long and wearisome process they amassed the prized signatures of more than two-thirds of the neighbors. Agreement in hand, they requested a permit to build the elevator shaft. Surprise… when the application was filed and the request posted for objections, usually a procedural matter with agreed-upon elevators, a majority of the neighbors opposed. "You can't oppose," the exasperated couple exclaimed, "you've signed right here that you agree!" "I agree to an elevator, but not over there," retorted one neighbor. "And just why can I not change my mind?" queried another. "I didn't sign," proclaimed another. "You don't count! Two-thirds did sign!" "They may have signed, but you did not bring it to a tenants' meeting." "What's the difference? I asked every single one of you." The Municipal Planning Committee heard the objections in July and decided not to grant the permit. The now exhausted couple appealed to the Regional Planning Appellate Commission, which heard the case last month. The Appellate Commission upheld the Planning Committee's ruling. In an aside, or as we disguise its insignificance in legal jargon, an obiter, the Appellate Commission stated its position that one really should keep promises and therefore backing down on something you signed is a no-no. "But that's really not our business," they said, "the commission lacks the jurisdiction of a court and we may not rule on questions of contractual rights." Nobody disagreed that the signatures of two-thirds of the owners were attached to the application, and that the applying couple claimed that this agreement was irrevocable and would prevent those neighbors who changed their minds to now object to the elevator. But the decision to uphold the lower commission's ruling was based on the procedural flaw of not convening a tenants' meeting. The Land Law (Section 159a) states specifically that the agreement of two-thirds of the owners should be achieved within the framework of a tenants' meeting. It might be thought that there is no real difference between speaking to every single neighbor separately and meeting the same people as a group. But the commission ruled that there was a significant difference. The legislator's concept was one of presenting plans to a plenum, in which case everyone hears exactly the same words and where the opportunity is given to the neighbors to discuss it among themselves and convince each other. And so the couple, exhausted and disillusioned, mounted the 72 steps to their home and now are convening a tenants' meeting, hoping to convince at least two-thirds of those present to agree to the installation of an elevator. Haim Katz is a senior partner with the Abraham Neeman Law Offices, one of the largest real estate law firms in Israel.