bibi - Emil Salman - June 13 2011
Yaron Bibi. Photo by Emil Salman
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Gil Eliyahu
Yaron Bibi: 'I felt uncomfortable that people living 50 or 70 years on a kibbutz couldn’t register their homes under their own names.' Photo by Gil Eliyahu

In a landmark decision Thursday the High Court of Justice ruled that members of kibbutzim and of cooperative moshav agricultural communities can register their homes as their own personal property. A panel of seven justices upheld a resolution to this effect, drafted by the Israel Land Council, the policy-making arm of the Israel Lands Authority, over objections from the Association for Distributive Justice nonprofit group.

Members of these communities will still need to pay 3.75% of the land's value to register their homes in the Land Registry, and 33% of its value if they wish to sell. The judges also approved the commercial use of moshav property, but would not allow renting it out to other people for nonagricultural purposes.

"By taking this position, we stood up for the working of the land and the cultivation of the soil that has been done over many years by people who own rights to property, which created expectations among them regarding their continued hold on the land," said Justice Edna Arbel, who headed the panel. "Weighing the factors, it would seem that [payment of] a rate of 33% of the value of the land to purchase full rights to a residential plot also takes into account various distributive aspects, including the size of the payments, the scope of the services and extent of discounts given to every sector, as well as broader considerations."

"I also felt uncomfortable that people living 50 or 70 years on a kibbutz couldn't register their homes under their own names," said Yaron Bibi, head of the ILA, after the ruling. "One of the main claims against us was that we treated kibbutzniks like sharecroppers. We didn't have an effective answer to this, which was really terrible. I am happy we finally have a good solution. These people can register their homes in their names, take out mortgages and conduct themselves like every other homeowner in the country."

"I am very happy with this ruling because it will reduce friction over illegal construction in moshavim and kibbutzim," added Bibi. "Until now we received very lenient rulings from the courts that took into consideration the problems members of moshavim have in making a living. Now these matters will be settled and we can also file claims against businesses operating illegally on moshav land with greater authority."

The court deliberated a number of issues, stemming mainly from the application of ILA resolutions Nos. 979 and 1101 settling the matter of land ownership and use among members of the rural collectives who claimed that their historical rights - which they attributed to their building up and development of the land over time - should allow them to acquire ownership over their homes for a nominal fee.

The nonprofit ADJ, on the other hand, claimed that handing out state land freely to those living on it is contrary to the principle of distributive justice.

The judges also approved the splitting up and sale of property by moshav members. Until now they were allowed three housing units, but these were limited to one for themselves plus two more for family members. The panel decided to permit them to sell their additional units to anyone they choose.

But the court intervened when it came to applying resolution No. 1101, giving moshav members the right to establish nonagricultural businesses on their property. The judges struck down the clause in the resolution allowing them to lease out non-farming business activity to third parties, restricting such activity to only the members themselves.

"Declining agricultural profitability and difficulties among moshav leaseholders led the ILA over the years to emphasize the connection between their land and farm production, while opening a small window for nonagricultural employment," the decision said. "But the use of farmland for nonagricultural purposes must be limited to the leaseholder himself, to supplement the insufficient livelihood he has from farm work. Allowing non-farming use of the land was a 'necessary evil' - not [instituted] so that the person could extend his income far beyond what he can make from farming, or expand his range of business to the point of turning his farmland into 'land for rent,' for creating commercial buildings and industry for lease to outside business interests."

The court also intervened when it came to the cut-off date established in resolution No. 979, after which any new members joining a kibbutz would be subjected to tougher terms in registering their homes: The ILA originally set the date of September 2, 2003, but the court pushed it forward to March 27, 2007.

'Wrong figures'

Not everyone was delighted with the results. "From our perspective resolution 979 is inapplicable since it is replete with incongruous conditions," said Micha Drori, legal counsel for the Kibbutz Movement. "Isn't it absurd that in the city homeowners need to pay 3.75%, while in the kibbutzim it costs 33%? Where will kibbutz members get the money? They are now left without any chance of registering their homes. The ruling affirmed the discrimination against kibbutz members compared with urban dwellers."

Secretary general of the Agricultural Union Dudu Kochman also slammed the decision: "Regretfully the court continues its ways in heaping superlatives on the settlement movement, admiring and appreciating their enterprises since the establishment of the state, but when put to the test, the court bases itself on the wrong figures and sees the cost to settlers as a token fee throughout the years."

"By doing this they have allowed differentiation between the fees paid by people in the city on state land to establish their rights - for a rate of just 3.75% - while in the moshavim and kibbutzim they demand 33%," continued Kochman. "The court's decision will mean that we'll see moshavim and kibbutzim, primarily in outlaying areas, establish their rights at the new set rate, while in the central region they will have difficulty doing this."

"On the subject of employment (resolution No. 1101 ) the court harmed and limited the settlers' freedom," complains Kochman. "It in essence expects 50 and 60 year-olds to begin working in agriculture and in occupations they don't have the tools for. Leasing to third parties, which the court cancelled, was supposed to provide a solution to this."

The decision by the court to uphold resolution No. 979 doesn't provide an appropriate response when it comes to preserving the conventional means of kibbutz growth and development, according to Itzhak Bader, chairman of Granot Central Cooperative and a member of kibbutz Givat Haim Meuhad.

"We therefore perceive the fact that the court didn't change [the situation of] business as usual, which will persist. We will continue to ignore the resolution as we have in the past," he added.

Land assessor Shaul Weissman, formerly in charge of agricultural property assessment at the Agriculture Ministry, concurs. "To tell a kibbutz that has been around for 100 years to buy its land is totally scandalous. The ILA shouldn't get anything because some of these communities were established before the state and they've had leases for generations listed in the Land Registry, and also as owners. The land value in these communities is a direct outcome of the improvements made by the kibbutzim themselves, not the ILA. The result is that the ILA wants to get its hands on the lands of the old-time settlement community. This cannot be permitted."

For his part, Attorney Rhanan Har-Zahav, representing the Forum of 15, an association of 15 major economically independent cities throughout the country, said the organization opposes the establishment of businesses on moshav land. "The Forum of 15 expressed concern that business owners will flee to the moshavim where rents are lower and local taxes are negligible," he predicted. "I am happy the court accepted this argument."

"Another issue we raised, regarding resolution No. 979, is that beforehand a moshav member could have two additional housing units in addition to the dwelling in which he resided," added Har-Zahav. "The ruling established that he could rent these out, which we opposed. But the court also ruled that resolution No. 1101 is unreasonable because it doesn't take the 'suburbanization' of cities into account."