Miscellaneous - עמיהוד בורוכוב, משרד עורכי דין

If two relatives are given a plot of land as a gift together, and jointly registered as owners, what can one of them do to solve the issue once and for all if the other “takes over” the show, and occupies/uses more than his fair share of the land ?

Property Rights •Miscellaneous

One option is for the dissatisfied owner of the plot of land to take action to formalize a division of ownership, and the re-registration of it so that each of them is the complete owner of a separate part.

During my marriage my wife and I purchased two properties together with my wife’s parents. In both cases my wife and I paid for three quarters of the loans taken out to finance the purchase, and her parents helped us by taking an additional mortgage. One property was registered at the Land Registry and the other with a building company. Recently my wife’s parents have become very ill and I fear their days are numbered. What would my share be in each of the properties ?

Property Rights •Miscellaneous

The answer to the question depends on where the properties were registered. When a property is jointly registered at the Land Registry without any mention of the share of each of the owners, then there is a legal assumption under the 1969 Land Law that each party owns an equal share. However, it is possible to ensure an unequal partnership regarding property rights, by agreement between the parties, who can do this at any time, including when they divide their partnership in the property.

A few years ago my husband and I decided to buy an apartment together with his father by combining our rights. We did so by my husband and I taking a few loans and his father a smaller loan. The apartment was registered in our names at the Land Registry, without any mention of our respective shares. I am considering divorce now and want to know what my share in the apartment is.

Property Rights •Miscellaneous

Where a property is registered at the Lands Registry in a number of names without the share of each being specified, then there is an assumption under the 1969 Land Law that the shares of the partners are equal. However, the act also states that when such a property is divided it will be done so either by the partners’ agreement or by a court order. Accordingly, if the partners can agree on the size of their respective shares then this will determine the outcome but if they cannot then the only option is for the submission of a plea to divide the partnership so that the court will decide on the matter.

Are conditions in a will about restricting or conditioning future division of partnership in the testator’s property to be viewed as ‘a partnership agreement’ which can expire in time, according to the 1969 Land Law ?

Property Rights •Miscellaneous

No, instructions in a testator’s will, it was held by the Tel Aviv Family Court, do not amount to a “ partnership agreement” according to the 1969 Land Law. It rejected a plea by the plaintiff to divide partnership in a property owned jointly with her sister. The plaintiff claimed that she had a right to divide the property because instructions in their late mother’s will conditioning the end of the sister’s partnership in the property were subject to the Land Law , and after 3 years a court could rule on division of the partnership despite them. But the court rejected this argument and held that the conditions set in the will about ending partnership did not amount to a ‘partnership agreement’ , but were binding and clear wishes of the testator which should be followed.

My mother is an elderly widow. She has told my brother and I many times over the years that we will both inherit her apartment when she dies. Recently, I am concerned because she is becoming weak, both physically and mentally and I am worried that she may transfer the property to my brother who is rather pushy over my head. Is there any way of preventing this ?

Property Rights •Miscellaneous

Yes, a mechanism exists under the Land Law of 1969 for a ‘consent remark’ to be made at the land registry to prevent the transfer of a property or rights in it where the registrar is satisfied that a transaction has been conditioned/limited. Such a condition/limitation can arise from legislation, a court order or from an undertaking by the owner of the property/rights . The registrar can enter a remark to this effect on the register with the third party’s/parties’ agreement. This should prevent a transaction being effected over someone’s head as the need for mutual consent is registered.

What chance does a husband have of getting rent or payment for use of his apartment before they were married, as part of property proceedings between them ?

Property Rights •Miscellaneous

Very very slim – and such a request is likely to be viewed very negatively by the court, and likely to be rejected for lack of any legal basis, and being very petty,unless there is any written evidence of the wife’s undertaking to pay for accommodation before their marriage.

Ten years ago I bought an apartment together with my son and we lived there together with him until just over a year ago when he basically forced me to leave. I now live in an old age home and in need of money to enable me to carry on living there. I know that my room stood empty for a few months after I left the apartment but that my son then rented it out for quite a handsome sum. Am I entitled to part of the rent my son receives ?

Property Rights •Miscellaneous

Where a person is forced to leave his home his right to a fee for its use comes into being from the time of his departure, even if the person forcing him to depart leaves it empty . The actual calculation and levying of the fee is often difficult , and depends on a number of factors. Firstly, whether the apartment is rented or not, the court will be required to determine the appropriate fee . Secondly, the proportion of this fee the person forced to leave the apartment is entitled to must also be determined. This depends on where the particular apartment was registered.

If the property is registered at the Lands Registry, then unless the share of the partners is specified, the assumption in the 1969 Land Act that each partner has an equal share will apply. If the apartment is registered with a building company, the court has more flexibility as the 1971 Moveable Property Act will apply. This allows the court to divide up the property in what it considers as the most fair and efficient manner, given the particular circumstances .

I am a widower. I bought an apartment with my son and daughter-in-law as we put our rights to special grants for immigrants purchasing a home together. The trouble is that my son has moved out, and gone to live with his girlfriend. It is impossible for me to stay on in the apartment with my daughter-in-law. If I leave, can I claim money from her for use of my room until our partnership in the property is divided up ? I am sure she will ‘rent’ it out to someone unofficially and make money on it anyway.

Property Rights •Miscellaneous

Yes, in principle a person who has a share in a property and leaves it is entitled to claim money for the use of his/her part . In a case before the Tel Aviv Family Court a few years ago where it divided up partnership in an apartment bought by the deceased, her mother-in-law and her husband as immigrants with state help, it was held that the mother-in-law was entitled to claim back money for use of her room in the apartment after she had left it, until it was vacated for sale.

Has a Moslem woman who divorces any legal defence/claims against a plea to evict her and her minor children from her ex- father-in-law’s property ?

Property Rights •Miscellaneous

Yes, according to a judgment from Kfar Saba Family Court , which was based on Supreme Court precedent in the Abu Romani case.

My wife and I have long-standing marital problems but still live together in our home, which is in our joint names. My wife’s daughter from her first marriage lives with us although she is in her twenties. The apartment is small and she uses a room I would use for my hobby, photography. Do I have the legal right to force her to leave ?

Property Rights •Miscellaneous

The Supreme Court has held that the joint owner of a property has no right to give another person, who has no property rights in the apartment, permission to live there where this would infringe upon the other owner’s occupation and use of the property. This is so whether the person in question is a stranger or an adult child. Where there is no legal obligation on a parent to supply an adult child with accommodation, there is no reason to depart from this precedent.

This was clarified in a case before the Tel Aviv Family Court where an apartment was jointly owned by a couple locked in a long-standing legal battle. The husband applied for a temporary order forbidding their adult children from entering/sleeping there. The court held that one joint owner can invite guests providing it does not interfere with the other’s reasonable use of the property, even without the other’s permission. Jewish law, it said, recognised the right of a parent to host grown up children, and incorporates this in a woman’s maintenance. Rejecting the husband’s plea the court held that the adult son could visit his mother at the apartment during reasonable hours but could not stay overnight.