TAMA 38 and Pinui-Binui in Halachah [1]

About 20 years ago, a law was enacted in Israel called TAMA 38 [National Outline Plan], in order to encourage contractors to reinforce existing buildings according to the required standard, with the goal of minimizing damage in the event of an earthquake. The law grants building concessions, such as adding construction on the sides of the building and on the roof, as well as tax relief, on condition that the structure is reinforced according to the standard, including the addition of a mamad — a protected room — to every unit, and various other conditions [as detailed in the article]. The manner in which TAMA is carried out is that the residents make an agreement with a developer who undertakes to reinforce the building according to the required standard, and builds an addition to the apartments for the neighbors, including a mamad, and other conditions as agreed upon. In exchange, the developer receives the building rights on the roof, and other rights according to the agreement between the parties. This agreement raises various halachic issues, which, with Hashem’s help, we will discuss.

Background of the law

Before clarifying this matter in Halachah, we must explain what TAMA is and what its components are. TAMA 38 [National Outline Plan] is a government program for reinforcing existing buildings against earthquakes, since experts claimed that there is a high risk of an earthquake and that it is only a matter of time before disaster strikes. Against this background, the idea for the law arose.

The law began in 2005 [5765], and it includes buildings for which a building permit was granted before the beginning of 1980, based on the assumption that those buildings were not then built in accordance with the standard intended to ensure their resistance to earthquakes [Standard 413]. This plan was initially approved for 5 years; it was then extended, and amendments were made to the law.

Today the plan is divided into two parts: TAMA 38/1 — reinforcing an existing building and adding construction to it. TAMA 38/2 — demolishing a building that requires reinforcement and rebuilding it in accordance with the criteria of the plan. Over the years several amendments were made to the law; we will not deal with them in this halachic article, but will only write briefly what is relevant to the matter.

The difference between the two types of tracks

There is a track called TAMA 38/1, in which the existing building is reinforced against earthquakes, including enlarging the apartment and adding a mamad, as well as an elevator and sometimes also a balcony for each apartment. In this way the building is strengthened and upgraded; if possible, the residents also receive a storage room and parking. As part of reinforcing the building, an exterior renovation is also carried out for the structure and its surroundings, as well as renovation of the lobby and stairwell, and improvement of the building’s infrastructure, including water pipes, sewage, gas, and the like.

In exchange, the plan permits adding new residential units to the building. The construction is carried out by enclosing floors, columns, adding floors, or adding a wing and expanding the existing residential units in the building [as of today, the addition is between 1.5 and 2.5 floors, depending on the existing number of floors, the area, and various other conditions].

After it was found that some buildings would not meet the above standard even if they were reinforced under TAMA 38/1, an additional track was created, called TAMA 38/2. This allows demolition of the building and its rebuilding while meeting strict engineering standards defined in the plan. It also permits building more floors than were demolished, and a greater number of units than there were previously [it should be noted that the number of apartments and the height of the building depend on the policy of the local authority and may vary from city to city]. The apartment owners receive an entirely new building, a new apartment, and also a parking facility, which is usually underground.

Another significant difference between the tracks is that TAMA 38/1 requires the consent of two-thirds of the residents, which is about 67%, whereas TAMA 38/2 requires the consent of 80% of the residents. Where there are opponents among the property owners, the authority is given to the Supervisor of Condominiums to decide the matter after hearing the parties; that is, the supervisor has the right to decide whether to approve the construction despite the opposition of some of the residents, or to accept the objection and reject the construction, all at his sole discretion.

I will note that there is another track called “Pinui-Binui,” which, with Hashem’s help, we will address in a separate article.

The central difference between TAMA 38 and ordinary construction

The main point that distinguishes TAMA 38 from other building extensions is that ordinary building extensions involve increasing and changing the existing partners’ areas, which is a change in the manner in which those partners use different parts of the property. By contrast, TAMA 38 is not a different use of the common areas, but a very significant external financial gift whose value is considerable, since in general it is possible to build several more floors on the roof, as well as on the sides of the building and in other places.

The current common practice for TAMA construction

Usually, developers approach residents with a proposal that they build and reinforce the building according to the approved TAMA, and they reach an agreement with the residents that during construction, when the residents are evacuated to rented apartments, all expenses are borne by the developer. Likewise, all other costs, such as taxes, fees, and all kinds of payments, are paid by the developer. The residents receive additional rooms, a mamad, and more, according to what they agree between them. In exchange, the developer receives the new units added to the building.

Of course, the aspiration and desire of developers is naturally TAMA 38/2, which is usually more profitable because more units are obtained. By contrast, the residents generally prefer to remain with the existing structure and add construction to the existing situation, namely TAMA 38/1; in practice, the result is that the developer receives less. I will note that it is recommended, and even obligatory, for residents to consult with experts so that they stand up for their rights, receive appropriate guarantees, and are not deprived, as I have seen in several cases that came before me in which residents were stripped of their rights.

The halachic issues created by this law

Since every addition of construction in a condominium is a use of the common property, in which the one expanding takes from the neighbors some ownership in the common area, there is an issue of an “ownership question.” In addition, there is also a “planning question”: whether the construction that the neighbor wants to add on the plot disturbs the neighbors, or any other question that is not related to the ownership of the residents but to the form of the construction and to damages to neighbors.

Ownership of the roof according to Torah law and according to civil law

Before we discuss the right of the residents to compel those who object {which, with Hashem’s help, will be explained in the following articles}, there would seemingly be room to discuss who owns the roof of the top floor. Since each person bought an apartment on a certain floor, it would follow that the resident who bought the upper apartment has the upper roof as his and may build as he wishes, since there is no resident above him; or perhaps it is considered a partnership of all the owners of the building.

In the collection HaYashar VeHaTov (vol. 12, article by Rabbi Rosk), he wrote to prove from the Tosefta (Bava Metzia 11:12), which states: a house and an upper story belonging to two people, and the owner of the upper story seeks to make himself another level, and the owner of the house does not allow him — in a place where the custom is to make two levels, he makes two; three, he makes three; and one does not deviate from the custom of the locale. This Tosefta is brought in the Tur (Choshen Mishpat, end of siman 164). It is clear that the roof belongs to the owner of the upper story alone, and he is permitted to build upon it as he wishes, as long as he does not endanger the house beneath him. On the basis of this Tosefta, the Raavad (brought there in the Tur) discusses what is stated in the Gemara (Bava Metzia 117b): if the upper one comes to change and build with hewn stone, we listen to him; with unhewn stone, we do not listen to him, etc.; to increase the windows, we listen to him; to decrease the windows, we do not listen to him, etc. It is clear that if the house and the upper story fell and they came to rebuild them, the upper one may not build in a manner that changes and causes the upper story to be heavier than it was previously.

The Raavad wrote about this that only when the upper one wishes to deviate from the custom can the lower one prevent him; but if he acts according to the custom, even if he comes to make it heavier, he is permitted, as is clear from the Tosefta mentioned above: if the custom of the locale is to build two or three levels, the upper one may build even though he thereby makes it heavier.

In Shulchan Aruch (Choshen Mishpat 164:7), this law is brought, and the Rema there rules like the Raavad, that if the custom is to change and make it heavier, he may do so. Accordingly, there is room to discuss that in every condominium the upper resident is seemingly permitted to build as he wishes.

The sugya in Bava Batra: does one who sells a house sell the roof?

However, upon analysis, it appears that one cannot say so, for we learned in the Mishnah (Bava Batra 61a): one who sells a house has not sold the roof, when it has a parapet ten tefachim high. And in the Gemara (there 63b), Rav Dimi of Nehardea said: one who sells a house to his fellow, even though he wrote for him “the depth and the height,” must write for him: “Acquire for yourself from the depths of the earth to the height of the heavens.” What is the reason? “The depth and the height” by itself he does not acquire; “the depth and the height” helps, and “from the depths of the earth to the height of the heavens” helps to acquire a pit, cistern, and tunnels, etc. Come and hear, etc.; and we say: for what halachic purpose, etc.? Rav Pappa said: that if he wishes to build an upper story on top of it, he may build, etc.

It is clear that if the homeowner sold his house to another person, even if he did not specify that he retained the roof and its rights for himself, the roof remains his to build upon whenever he wishes; and as long as he did not explicitly convey the roof, the buyer does not acquire it. It is reasonable that the same applies to two people who inherited or bought a house in partnership, or bought land and built on it a house and an upper story, and divided between them so that one took the house and the other the upper story. One may argue that although in their division they are selling to one another their rights in the partner’s portion, the rights to the roof and also to the land are not included in the division and sale, unless they wrote explicitly that they are dividing the entire property: the lower one receiving the rights from the depths of the earth up to his house, and the upper one from his house to the height of the heavens.

According to what has been said, the words of the Tosefta stating that the upper one may build as he wishes can be understood as referring to a case where they specified at the outset, when one took the house and the other the upper story, that the upper one acquires the upper story up to the height of the heavens.

Accordingly, today in condominiums, if the roof was not explicitly attached to a specific apartment, the roof is a common asset belonging to all the residents of the building, even if they bought a plot together and built on it and did not specify the rights of each individual.

The custom in our times

All of the above is according to the essential law. However, in our times the matter is clear, after the Condominium Law [5729] was enacted decades ago, in which it is written that all parts of the condominium other than the parts registered as apartments, including the land, roofs, exterior walls, stairwells, elevators and shelters, as well as heating or water installations and the like intended to serve all the apartments or most of them, even if they are within the boundaries of a particular apartment, are considered common property. Since sales contracts are generally linked to the Condominium Law, there is a local custom here to leave the roof common to all, and it was with this understanding that they initially joined together and bought the apartments or the land on which they built the building.

But if the contractor attached the roof to a certain resident or to the residents of the top floor, it is as if he said, “on condition that the level and the roof are mine,” and its status is truly his. However, it must be emphasized that attaching the roof is not sufficient; one must also provide the resident to whom the roof was attached with building rights. Otherwise, the roof is indeed his, but in order to build, building percentages are needed, and these usually belong to all the residents of the building or the land. For that, their consent is needed in order to use the building percentages [unless approval is received from the authorities for additional rights for a specific resident].

Summary

The purpose of the TAMA 38 law is for buildings that were not built according to the new standard and where there is concern for an earthquake. The state granted building concessions so that the building would be reinforced and a mamad room would be added to every unit. Among the concessions is also building on the roof with the addition of several floors [depending on several parameters], so that it will be worthwhile for developers to build this construction for the residents. It should be known that according to the Condominium Law, and since sales contracts are signed accordingly, the upper roof of the building is common property of all the residents. Only today, in practice, contractors usually attach it to a specific neighbor; however, one must know that the contractor must also attach building rights to him, so that he will not need the consent of all the residents for construction.

In the following articles, with Hashem’s help, we will bring further discussions on this topic, and also whether the residents have the right according to Torah law to compel the residents who object to this.

From “Torat HaMishpat”