TAMA 38 and Pinui-Binui in Halachah [1]

About 20 years ago, a law was enacted in Israel known as TAMA 38 [National Outline Plan], to encourage contractors to strengthen existing buildings according to the required standard, with the aim of minimizing damage in the event of an earthquake. The law grants building incentives, such as adding construction on the sides of the building and on the roof, as well as tax concessions, on condition that the structure is reinforced according to the standard, including the addition of a mamad—protected room—to each unit, and various other conditions [as detailed in the article]. The way TAMA construction is carried out is that the residents reach an agreement with a developer who undertakes to strengthen the building according to the required standard, and builds an addition to the neighbors’ apartments, including a mamad, and fulfills other conditions as agreed; in return, the developer receives the building rights on the roof, and other rights according to the agreement between the parties. Now, this agreement raises various halachic issues, which, with G-d’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 strengthening existing buildings against earthquakes, since experts argued that there is a high risk of an earthquake, and that it is only a matter of time until a disaster occurs. Against this background, the idea for the law arose.

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

The program today is divided into two parts: TAMA 38/1 — strengthening 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 program. Over the years there have been several amendments to the law, which we will not address in this halachic article; we will write only a summary of 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 a balcony for each apartment. In this way the building is strengthened and upgraded, and if possible, the residents also receive a storage room and parking. As part of the building’s reinforcement, external renovation of the structure and its surroundings is also carried out, 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 return, the program permits the addition of new housing units in the building. The construction is done by closing in floors and columns, adding floors, or adding a wing and expanding the existing housing units in the building [as of today, the addition is between 1.5 and 2.5 floors, depending on the existing floors of the building, as well as the area and various other conditions].

After it was found that some buildings would not meet the above standard even if reinforcement were carried out under TAMA 38/1, another track was created, called TAMA 38/2. This allows demolition of the building and rebuilding it while meeting the strict engineering standards defined in the program. It also permits building more floors than were demolished and a greater number of units than previously existed [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 lot, usually underground.

Another significant difference between the tracks is that TAMA 38/1 requires the consent of two-thirds of the residents, approximately 67%, whereas TAMA 38/2 requires the consent of 80% of the residents. Where some of the property owners object, 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 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 G-d’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 expansions is that ordinary building expansions involve enlarging and changing existing jointly owned areas, meaning a change in the manner in which the same partners use various parts of the property. By contrast, TAMA 38 is not a different use of the common areas, but rather a highly significant external financial benefit whose value is very great, since generally several additional floors may be built on the roof, as well as on the sides of the building and in other places.

The current practice for TAMA construction

Usually developers approach the residents with an offer that they will build and strengthen the building according to the approved TAMA, and they reach an agreement with the residents that during the construction, when they are relocated 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, and the residents receive additional rooms and a mamad, and more, as agreed between them. In return, the developer receives the new units added to the building.

Of course, the aspiration and desire of the 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 current situation, which is TAMA 38/1, and in practice the developer receives less. I will note that it is recommended, and even obligatory, for residents to consult experts so that they can insist on their rights, receive appropriate guarantees, and not be 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’ ownership in the common area, there is an issue of “property acquisition.” In addition, there is also a “planning issue”: whether the construction that the neighbor wishes to add on the lot interferes with the neighbors, or any other question not connected to the residents’ ownership, but rather to the form of construction and the laws of neighborly damage.

Ownership of the roof according to Torah law and civil law

Before discussing the residents’ right to compel those who object {which, with G-d’s help, will be explained in the following articles}, there is seemingly room to discuss who owns the roof above the upper floor. Since each person bought an apartment on a certain floor, perhaps the resident who bought the upper apartment owns the roof above him and may build as he wishes, since there is no resident above him; or perhaps it is considered jointly owned by all the building’s owners.

In the collection HaYashar VehaTov (vol. 12, article by Rabbi Rusk), proof is brought from the Tosefta (Bava Metzia 11:12), which states: A house and an upper story belong to two people, and the owner of the upper story seeks to make for himself another story, but the owner of the house does not allow him — in a place where the custom is to make two stories, he may make two; three, he may make three; and one does not deviate from the custom of the locale. This Tosefta is cited in the Tur (Choshen Mishpat, end of siman 164). It is evident that the roof belongs to the owner of the upper story alone, and he may build upon it as he wishes, so long as he does not endanger the house beneath him. Based on this Tosefta, the Raavad (cited in the Tur there) discusses what is stated in the Gemara (Bava Metzia 117b): If the upper owner comes to change to hewn stone, we listen to him; to unhewn stone, we do not listen to him, etc.; to add windows, we listen to him; to reduce windows, we do not listen to him, etc. It is evident that if the house and upper story collapsed and they came to rebuild them, the upper owner may not build in a manner that changes and increases the weight of the upper story more than it had been before.

The Raavad wrote regarding this that only where the upper owner wishes to deviate from the custom may the lower owner prevent him; but if he acts according to the custom, even if he increases the weight, he may do so, as is evident from the above Tosefta: if the custom of the locale is to build two or three stories, the upper owner may build, even though he thereby adds weight.

In the 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 add weight, one may do so. According to this, there is room to discuss every condominium, where it would seem that the upper owner may build as he wishes.

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

However, after analysis, it appears that this cannot be said, 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 to him “the depth and the height,” must write to him: “Acquire for yourself from the depths of the earth until the height of the heavens.” What is the reason? Because “the depth and the height” he does not acquire by default; “the depth and the height” is effective, and “from the depths of the earth until the height of the heavens” is effective for acquiring a pit, cistern, and tunnels, etc. Come and hear, etc.; and we say: for what halachic purpose, etc.? Rav Pappa said: that if he wished to build an upper story upon it, he may build, etc.

It is evident that if the owner of a house sold his house to another, even if he did not specify that he reserves the roof and its rights for himself, the roof remains his to build on whenever he wishes; and as long as he did not explicitly convey the roof, the buyer does not acquire it. It stands to reason 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 then divided between themselves so that one took the house and the other the upper story. Although in their division they are in effect selling each other their rights in the partner’s portion, the rights in the roof, and likewise in the land, are not included in the division and sale, unless they wrote explicitly that they are dividing the entire property: for the lower one, the rights from the depths of the earth up to his house; and for the upper one, from his house up to the height of the heavens.

Accordingly, one should say that the words of the Tosefta stated above, that the upper owner may build as he wishes, refer to a case where they specified at the outset, when one took the house and the other the upper story, that the upper owner acquires the upper story up to the height of the heavens.

According to this, today in condominiums, if the roof was not explicitly attached to a particular apartment, the roof is joint property of all the building’s residents, even if they bought a lot together and built on it without specifying the rights of each one.

The custom in our times

All the above is according to the fundamental law. However, in our times the matter is straightforward, after the Condominium Law [5729] was accepted decades ago, in which it is written that all parts of the condominium except 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 sale contracts are typically tied to the Condominium Law, there is a prevailing custom of the locale 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 particular resident or to the residents of the top floor, it is as if he said: “on condition that the upper story and the roof are mine,” and its status is entirely his. However, this must be emphasized: attaching the roof is not enough; one must also grant the possibility of building rights to the resident to whom the roof was attached. Otherwise, although the roof is his, in order to build one needs building percentages, and these generally belong to all the residents of the building or the land; for this, their consent is needed to use the building percentages [unless approval is received from the authorities for additional rights for a particular 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 about an earthquake. The state granted building incentives so that the building would be strengthened and a mamad room would be added to each unit. Among the incentives is also construction on the roof, adding several floors [depending on several parameters], so that it will be worthwhile for developers to carry out this construction for the residents. One must know that according to the Condominium Law, and since sale contracts are signed accordingly, the upper roof of the building is common property of all the residents. Only today, in practice, contractors generally attach it to a particular neighbor; but 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 G-d’s help, we will present further discussions on this subject, and also whether the residents have the right according to Torah law to compel the residents who object to it.

From “Torat HaMishpat”