As more and more people file for planning permits to renovate their buildings under National Master Plan 38, a side effect is coming to light. It seems the framers of NMP-38 hadn't seen this one coming: What can be done when execution of the plan steamrolls over the rights of the neighbors on the top floor to build another room on the roof?

NMP-38 was formulated in 2005. The main purpose is to persuade homeowners to fortify buildings constructed before 1980 against earthquakes. The authorities' contribution is to relax planning rules for the area. The homeowners contract with a builder to fix up and strengthen the building for free. Usually the apartments are also upgraded in some fashion - perhaps they are expanded, or the contractor builds an elevator shaft. In exchange for his services the builder gets to erect an extra story or two, sell the new apartments and pocket the proceeds. Everybody's happy - except for the neighbor who had rights to build on the roof himself, and who can now gum up the works by withholding approval.

Sound like a rarity, an exception? It isn't. The planning authorities have registered dozens of instances where they have had to decide whose rights prevailed.

"There is hardly a house committee in a building erected before 1980 that isn't considering implementing NMP-38," claims Barak Keinan of the Hartavi, Bornstein-Basson & Co law offices, who's been involved in not a few such conflicts. "In many cases the only option the tenants have to upgrade their dwelling is through the master plan, and then somebody comes along and says: 'Excuse me, I'm building on the roof.' Of course that creates discord."

A recent ruling handed down by the the Central District Planning and Building Council Appeals Committee involved a homeowner living in an apartment building in Hod Hasharon, who asked to build on the roof. His petition for permission to do so had been rejected by the local planning authority after 13 of the 24 residents in the building objected, on the grounds that granting the permit would make it difficult to implement NMP-38. The committee that rejected his petition noted that under NMP-38, no less than 16 new apartments could be added to the building.

In his appeal, the homeowner said that when he'd announced his plan to his neighbors, none had filed objections by the deadline, under law. After that deadline, one objection was filed - co-signed by tenants who had previously given the homeowner their permission in writing.

The homeowner also claimed that the opponents' argument - that the construction he planned would frustrate future implementation of NMP-38 - was specious. If anything, various feelers sent in that direction had failed, and furthermore, from an engineering perspective the building probably wasn't suited to that sort of extra, heavy construction.

Three representatives of the opponents attended the appeals hearing. They claimed that from conversations with developers, they understood that if the homeowner was allowed to build his extra room on the roof, it would double the costs of implementing NMP-38 in the building, if not more.

The problem was conflicting rights, the appeals committee said. The tenants' committee - an elected body theoretically headed by a rotating chairman - had the right to pursue NMP-38. However, the homeowner in question also had the right to apply for permission to build another room on the roof.

Public interest prevails

But the right to reinforce the building to withstand earthquakes, and perhaps simultaneously to increase the value of the apartments in the building, prevailed - but not forever. The appeals committee gave the tenants committee six months to file a request for a permit to upgrade the building according to NMP-38. If the committee failed to do so, then the homeowner could act to expand his property.

A similar decision was handed down in another case on Beeri Street, Netanya. There the appeals committee pointed out that implementation of NMP-38 could not negate rights of homeowners to build on the roof in general. Yet again that same body found for the public interest - giving the tenants' committee a chance to pursue NMP-38 before giving the recalcitrant homeowner the right to expand his personal property. There they gave the tenants a nine-month window to close a deal with a contractor. If they didn't, the homeowner would prevail, it said. A third case in Rishon Letzion ended the same way.

Barak Keinan elaborates: The planning authorities are saying a homeowner who is allowed by law to build on the roof cannot be frustrated forever by the theoretical concept that one day, the other homeowners may want to fix up the building under NMP-38. Yet the public interest must prevail. The solution: Once a homeowner concretely wants to expand, the tenants must rise to the challenge - fast.

"They want to pursue NMP-38? Go for it. You have six months to get practical and submit paperwork to the local planning committee," he explains. And if the tenants don't, the homeowner gets his permit to expand.

Keinan, who has represented tenant committees in such cases, feels however that six months is too short a time, given the complexities of pursuing the master plan. A better balance between the warring interests would be a year to 18 months, he asserts.