¹ For European countries see Leyser, J., “The Ownership of Flats—a Comparative Study” (1958) 7 I.C.L.Q. 31.CrossRefGoogle Scholar For the U.S.A. see Berger, C. J., “Condominium: Shelter on a Statutory Foundation” (1963) 63 Colum. L.R. 987, 980 ffCrossRefGoogle Scholar. For Canada, see Sinclair, A. M., “Condominium in Canada” (1968) 46 Can. B.R. 1.Google Scholar

² (1951) 10 Divrei HaKnesset 470. Among the advantages urged in debate were that a regulatory law would encourage a better feeling of belonging, facilitate financial arrangements, promote savings and investment and advance the proper care and maintenance of house property.

³ These figures are taken from the Annual Statistical Abstracts of Israel and the monthly returns made by the Land Registry to the Ministry of Justice.

⁴ In Jewish law as well there is no impediment of the “fragmentation” of ownership and although the position as to roofs, walls and the like may not be altogether certain, there are clear developmental possibilities: see Herzog, I., The Main Institutions of Jewish Law, Vol. I, chs. 8 and 21.Google Scholar

⁵ In 1962–63, 37 states had condominium enactments: 15 Am.Jur. 2d, 983, note 6. By 1965, 44 states had them: Rohan, P.J., “Drafting Condominium Instruments” (1965) 65 Colum. L.R. 593.CrossRefGoogle Scholar

⁶ Scamell, E. H., “Legal Aspects of Flat Schemes” (1964) 14 Current Legal Problems, 161–3, 180–2.Google Scholar

⁷ See Book X of the Mejelle generally and Goadby, F.M. and Doukhan, M. J., The Land Law of Palestine (1935), chs. 12 and 14.Google Scholar

⁸ e.g., Aaronson v. Freiman (1963) 12 P.D. 2488.

⁹ (1951) 8 Divrei HaKnesset 760.

¹⁰ Ibid.; (1951) 10 Divrei HaKnesset 470.

¹¹ Cf. the Explanatory Note to the Bill which eventually became the original Law in 1952; see below in the text.

¹² It is strange that in England mortgages are more readily obtainable on leasehold than on freehold flats. The reason appears to be the dubious legal position regarding the enforcement of positive covenants in the case of the latter; see Scamell, op. cit.

¹³ (1951) 8 Divrei HaKnesset 760.

¹⁴ See 15 Am.Jur. 2d, 978 ff.

¹⁵ Berger, op. cit. 991–2; Quirk, W. J., Wein, L. E. and Gomberg, I., “A Draft Program of Housing Reform: The Tenant Condominium” (1963) 53 Cornell L.R. 365–6.Google Scholar

¹⁶ Leyser, op. cit. 35, note 6; Davis, I., “Condominium and the Strata Titles Act” (1966) Can. B.J. 469, 472Google Scholar; 15 Am.Jur. 2d, 983, note 6.

¹⁷ The acceleration of the adoption of condominium statutes in the U.S.A. is directly attributed to mortgage facilities becoming more readily available under an amendment in 1961 of the National Housing Act. See note 5 above and Davis, op. cit. 469, 472.

¹⁸ References to “the Law” in this paper are to the Consolidated Version, 15 L.S.I. 219. The Knesset is at present dealing with a new Land Law (hereinafter called “the Bill”) which aims at modernizing and replacing by a code the variegated existing law relating to real property. A separate Part and a further Chapter are devoted to co-operative houses. Reference to the Bill will generally be made where it departs significantly from the Law. See n. 145 below.

¹⁹ The Bill also groups the matters regulated in these chapters in a similar fashion.

²⁰ Cf. Berger, op. cit. 1002–3. In America the term “condominium” is indiscriminately and, it is suggested, erroneously applied (cf. 15 Am.Jur. 2d, 978) to what is the whole complex of dwellings and common property, whereas strictly it applies to the latter alone.

²¹ Cf. Leyser, op. cit.37 ff.

²² i.e., a room or compartment or a set of rooms or compartments intended to be used as a complete and separate unit for the purpose of habitation or business or for any other purpose: section 1.

²³ See Goadby and Doukhan, op. cit.,ch. 10 generally for this right of shufa.

²⁴ See section 19 of the Succession Ordinance, 1923, and Goadby and Doukhan, op. cit., ch. 7. The matter is now academic since under section 109 of the Succession Law, 1965, the special laws relating to Miri land are generally repealed for purposes of succession.

²⁵ e.g., in sections 40–42.

²⁶ Free alienability subsists in France, but in Germany the consent of the other owners is required: Leyser, op. cit. 37 ff.; for a similar rule in the U.S.A. see 15 Am.-Jur. 2d, 998–1000.

²⁷ See n. 22 above.

²⁸ In 1963, in San Paulo and Rio de Janeiro 80% of commercial buildings were under a condominium regime: Berger, op. cit. 989. In Massachusetts, condominium does not primarily extend to business premises: (1963) 77 Harv. L.R. 777.

²⁹ Assistance is also given under the Tenants' Protection Laws of 1954 and 1955 with regard to the pegging of rents, provision of services, repairs and security of tenure.

³⁰ Section 4.

³¹ Kentucky.

³² Columbia.

³³ 15 Am.Jur. 2d, 978, note 2.

³⁴ Ibid. 478.

³⁵ Section 1.

³⁶ Such also appears to be the position in France, in contrast to Germany: Leyser, op. cit. 37 ff. From a social and economic viewpoint this is as it should be.

³⁷ Section 98(a) of the Bill adds, no doubt out of abundant caution, that a share in the common property cannot be the subject of any dealings separately from the dwelling.

³⁸ Section 98(b) of the Bill properly withdraws from such modifying arrangement the shelter and staircases.

³⁹ Cf. Leyser, op. cit. 42–43, and 15 Am. Jur. 2d, 991.

⁴⁰ In calculating the ratio of floor space, fractions of less than 1% are disregarded, as are also the areas of balconies which are normally open to the exterior. What will be the position when, as so often happens, these are enclosed to form an effective part of the dwelling? Section 99(b) of the Bill also excludes the “area” of the outer walls but these by definition of the common property are not part of the dwellings. Does this exclusion include the area of the inner walls which are partition walls between flats? If so, it might in some cases conceivably make a big difference.

⁴¹ Cf. 15 Am.Jur. 2d, 990, and Quirk, Wein and Gomberg, op. cit. 365–66.

⁴² Sections 6–10. Up to 1954 it was necessary for the application to be accompanied by a plan approved by the local building and planning commission, giving the layout of the dwellings. Possibly it was originally contemplated that only newly built houses or houses newly converted into dwellings would be registered under the Law and the plans of these would in any event need to be approved. As to old houses no such approved plans were available or necessary. Accordingly in 1954 the requirement was eased by permitting in all cases any plan giving to the satisfaction of the competent officer a true picture of the house and the dwellings: section 6(b). The amendment was not paralleled by a similar amendment of section 4 which requires as a condition of eligibility for registration a plan approved by the local commission. The inconsistency may lead to difficulties. Under the British Columbia Strata Titles Act, 1966, registration is also fairly simple, following the general procedure of land registration. A strata plan, “the master document”, is to be supplied with ancillary drawings of the units defined by reference to walls, floors and ceilings and approximate floor areas, as well as a schedule setting out the unit voting rights and shares in the common property and operating expenses: Davis, op. cit. 481.

⁴³ Sections 13–19.

⁴⁴ Sections 22–24.

⁴⁵ Section 21.

⁴⁶ Section 27.

⁴⁷ Section 26.

⁴⁸ See n. 42 and the Explanatory Note to the amending Law of 1960.

⁴⁹ Sections 30 and 11.

⁵⁰ A transaction is defined widely to mean a sale and transfer, partition, lease for a period exceeding three years, encumbrance of any kind, gift, transmission by will, dedication and any change in the terms of any transaction: section 1.

⁵¹ (1960) 14 P.D. 1530.

⁵² (1963) 17 P.D. 1691.

⁵³ The court consisted of Sussman J., Berinson J. and Cohn J. The first-named delivered the judgment of the court and the others merely concurred.

⁵⁴ (1964) (IV) 18 P.D. 686.

⁵⁵ In some American states, the consent of a given number of the owners only is necessary: 15 Am.Jur. 2d, 999.

⁵⁶ Section 68.

⁵⁷ Section 70.

⁵⁸ Under the British Columbia Act, immediately upon registration the owners are duly and automatically constituted a body corporate with a common seal, perpetual succession and the right to sue and be sued; judgments are proportionate to each owner's interest: Davis, op. cit. 482.

⁵⁹ Section 44. Emergency situations are not expressly regulated in the Law but the model agreement enables a “truncated” representation to take steps to make up their minimum number: paragraph 14(d). No doubt the rules of agency under sections 5 and 6 of the Agency Law, 1965, would apply.

⁶⁰ Section 45.

⁶¹ Section 60.

⁶² (1960) 16 P.D. 1330.

⁶³ Goadby and Doukhan, op. cit. 354.

⁶⁴ Leyser, op. cit. 43–44. See n. 58 above. In France, under article 14 of the new law of 1965, “la collectivité des copropriétaires est constituée en un syndicat qui a la personalité civile”.

⁶⁵ It may be observed that the Israel Law does not, like some European and American statutes, expressly enable or require the employment of professional house managers, but there seems nothing to prevent this being done under agreement.

⁶⁶ (1964) (II) 18 P.D. 21.

⁶⁷ 15 Am. Jur. 2d, 980. For European countries see Leyser, op. cit. 42–3.

⁶⁸ Cf. Scamell, op. cit. 166–70.

⁶⁹ The definition in section 95 of the Bill omits the words “electrical, gas” and “any part of the house” and instead of “it is situate” has “they are situate”. The first omission may be explained on the grounds that such installations are normally not held in common ownership and are perhaps already included in “and other similar installations”. The second omission is probably due to the words being in fact superfluous in view of the opening words of the definition given in the text. The final amendment is most important; see discussion below of the whole present definition.

⁷⁰ Section 43.

⁷¹ See, e.g., articles 1198–9, 1210–2, 1316 and 1318.

⁷² Goadby and Doukhan, op. cit. 219.

⁷³ This is the solution of the British Columbia Strata Titles Act, 1966: Davis, op. cit. 481.

⁷⁴ The point is well disposed of by section 95 of the Bill: see n. 69 above.

⁷⁵ (1963) (I) 17 P.D. 281.

⁷⁶ Sections 35 and 36 of the Bill also generally define ownership of immovable property as extending to the whole depth below the surface (subject to any law relating to water, petroleum, mines and minerals, etc.) and throughout the superincumbent air-space up to the limit to which exploitation is practically possible, provided that passage therethrough is not prevented. In subsequent sections provision is made to limit this very broad right of ownership in obvious ways, e.g. section 59 dealing with the withholding of light.

⁷⁷ It should be borne in mind that “land” includes buildings attached to land; see, e.g., section 1 of the Interpretation Ordinance (New Version) 1954.

⁷⁸ Leyser, op. cit.

⁷⁹ See above n. 52 and accompanying text.

⁸⁰ (1963) (III) 17 P.D. 1722.

⁸¹ A better translation would be “a part of the dwelling”.

⁸² Petah Tikvah Municipality v. Makalov (1964) (I) 18 P.D. 695.

⁸³ Leyser, op. cit. 40–1.

⁸⁴ Section 44.

⁸⁵ The possibility of appointing a paid provisional but not permanent representation is suggested by section 110 of the Bill. In other countries this is possible.

⁸⁶ Section 35.

⁸⁷ Section 38.

⁸⁸ Section 39.

⁸⁹ Alt v. Tel Aviv Planning Commission, supra. The comparison is perhaps more apt under sections 193–8 of the Bill, making the formulation and registration of an agreement apparently mandatory (there is some inconsistency in the relevant sections) and directing that the model agreement (or rules as it is here termed) shall be deemed to be included in so far as it is not varied or cancelled by the agreement registered.

⁹⁰ Paragraph 2.

⁹¹ Rosenstein v. “Parcel 143 Block 10808, Haifa” Co-operative House (1962) 29. P.M. 228.

⁹² Paragraph 2(d) of the Model Rules (i.e. Agreement) appended to the Bill grants this power.

⁹³ Section 42.

⁹⁴ Paragraph 3.

⁹⁵ Paragraph 5.

⁹⁶ Binyamini v. “104 Ibn Gvirol St., Tel Aviv” Co-operative House (1961) 15 P.D. 155, which involved the erection on the roof of a chimney connected by a pipe attached to an outside wall to a coffee roasting machine installed within a “shop” dwelling; cf. the Rosenstein case, supra,relying on the terms of paragraph 4(a).

⁹⁷ Paragraph 15(a).

⁹⁸ Paragraph 5.

⁹⁹ Paragraph 14.

¹⁰⁰ Paragraph 6.

¹⁰¹ Paragraph 13.

¹⁰² Paragraph 7.

¹⁰³ Paragraph 8.

¹⁰⁴ Paragraph 9.

¹⁰⁵ Paragraph 10.

¹⁰⁶ Paragraph 13(a).

¹⁰⁷ Kluger v. Klesmer, supra. During the debate in the Knesset, , (1951) 10 Divrei HaKnesset, 471 ff.Google Scholar, it was suggested that voting rights should be based on the size of a dwelling since it was not a matter of democratic equality but of real interests of ownership in a private property system. The interpretation of the point by the courts goes some way to meet this suggestion. Moreover, notwithstanding difficulties that may be encountered in calculating voting ratios under this suggestion, its adoption might tend to greater equitableness, especially where houses consist of dwellings of varying size.

¹⁰⁸ Paragraph 11.

¹⁰⁹ Paragraph 12.

¹¹⁰ Paragraph 46(a).

¹¹¹ Paragraph 14.

¹¹² Paragraph 14(d).

¹¹³ The Rosenstein case, supra.

¹¹⁴ Cf. 15 Am.Jur. 2d, 992.

¹¹⁵ Paragraph 15.

¹¹⁶ Cf. Sinclair, op. cit. 13.

¹¹⁷ It may be suggested that public nuisance might apply: see sections 45 and 46 of the Civil Wrongs Ordinance, 1944, now sections 44 and 45 of the New Version of the Ordinance, 1968. Section 58 of the Bill, without prejudice to any other pertinent Law, proscribes use by an owner or occupier which has no benefit in itself, but the sole purpose of which is to cause damage to neighbouring property.

¹¹⁸ Cf. Leyser, op. cit. 40. Under the Massachusetts Act of 1963 (see (1963) 77 Harv. L.R. 777 ff.) if more than half but not less than three-quarters of the owners agree, they alone must bear the cost. If over three-quarters agree, all must contribute. If the cost exceeds 10% of the value of the house, an owner who objects may be bought out at the current market price.

¹¹⁹ Cf. Sinclair, op.cit. 13; 15 Am.Jur. 2d, 992.

¹²⁰ Paragraph 10(b).

¹²¹ The British Columbia Strata Titles Act, 1966, requires a unanimous vote: Davis, op.cit. 481. In New York the approval of two-thirds is sufficient: Quirk, Wein and Gomberg, op. cit. 365–6.

²²² No. 137/66.

¹²³ See e.g. the Levinheim case, supra.

¹²⁴ Leyser, op. cit. 40, 49; Sinclair op. cit. 14–5; Am. Jur. 2d, 994 and note 13; for the Massachusetts Act, 1963, see (1963) 77 Harv. L.R. 777.

¹²⁵ Section 47. During the debates on the original Bill in 1951, 10 Divrei HaKnesset 471, doubts were expressed at giving so much authority to the competent officer as against the ordinary court and comparison was made with the unhappy experiences with special tribunals under other Laws. But the delays and formalities and other defects which mar ordinary legal proceedings have led not only in Israel (see for England B. Smith, Abel and Stevens, R., Lawyers and the Courts (1964), 264, 407Google Scholar) to a loss of esteem of the regular courts. Section 114 of the Bill actually extends the jurisdiction of the competent officer to trespasses by one owner on the dwelling of another or upon the common property. The latter is a confusion of notions, since in strict law an owner cannot trespass on property in which he has an undivided share (cf. section 67 of the Bill), unless the trespass constitutes ouster or destruction of the property: Winfield on Torts (7th. ed.) 369; Salmond on Torts (14th. ed.) 79–80, 162; Street, , Law of Torts (2nd. ed.) 52.Google Scholar He may abuse his rights but that is already covered by the reference of disputes over mutual rights and duties. An abuse of rights which gives the offender a greater benefit from the property is in English law not trespass and the remedy is for account (ibid.).The extension to the common property therefore seems to be quite unnecessary. It does not touch the co-operative house and there is no reason why a person should be deprived of his right of recourse to the courts.

¹²⁶ The Binyamini case, supra.

¹²⁷ The Kluger case, supra. There, however, Witkon J. doubted whether the competent officer could so amend the agreement since section 47 speaks of “rights and duties under the agreement”. Landau J., with whom Olshan P. tersely concurred, did not take the point but the statement in the text is to be implied from the whole tenor of his judgment.

¹²⁸ The omission is in fact remedied in section 115 of the Bill.

¹²⁹ The Alt case, supra,where the commission refused to deal with an application for a permit to add balconies to a co-operative house, which would have extended beyond the existing building line, on the grounds that (1) the application was only signed by the representation (see above p. 345); (2) the balconies would affect the common parts by making portions of the external walls internal walls and reduce the courtyard in area and (3) the agreement bound the owners as such and did not affect the instant matter. The court observed that the lawfulness of a decision of the general meeting, which purported to alter the rights of an owner without his consent in accordance with paragraph 10(b) of the model agreement, was not the concern of the commission. The affected owner had his remedy before the competent officer. In Nahum v. Herzliya Municipality (1968) (I) 22 P.D. 291, the court refused to entertain an application for an injunction against the defendant for having granted permission to erect shops on what was alleged to be common property. The court held that the applicant must proceed before the competent officer in nuisance and to enforce his rights in the common property.

¹³⁰ See Landau J. in the Kluger case, supra,at 693.

¹³¹ Section 56.

¹³² Sections 55, 57 and 59. Under section 117 of the Bill, the inspector hearing a dispute is given in general terms the powers of a magistrate in civil cases. The Bill vests the functions of the competent officer in an inspector of registration. See n. 134 below.

¹³³ Section 49.

¹³⁴ The competent officer may be the Director of Land Registration or an inspector of registration or a person who is an enrolled advocate and appointed by the Minister of Justice for this purpose. In fact the office has been invariably filled by an inspector.

¹³⁵ Section 54.

¹³⁶ Section 50.

¹³⁷ I am indebted to Dr. Link, the competent officer, for facilitating this examination.

¹³⁸ These figures are from returns made to the Ministry of Justice.

¹³⁹ Section 74.

¹⁴⁰ Cf. Berger, op. cit. 1013–5; Sinclair, op. cit. 15–21; 15 Am. Jur. 2d, 994.

¹⁴¹ Section 102(b) of the Bill takes this power of compulsion away from the representation and gives it in restricted form to the inspector who may, on being satisfied that rebuilding of the other dwellings alone is fair, direct the refusing owner to transfer within a period of not less than four months.

¹⁴² Section 77. Cf. n. 69 above.

¹⁴³ Section 60.

¹⁴⁴ Section 61.