Despite the considerations of keeping the law that planning institutions must first and foremost take into account, there are still many instances where it is possible to make the unlawful construction legal, as part of the legalization process. It is always necessary to examine the seriousness of the building violation and the property's owner is not always the transgressor.
Even in a situation where the owners have already violated the planning and building laws, there are options for making these offenses legal. Although the authorities and the courts give weight to the fact that they are permitting the violation, there is no inclination to absolutely deny requests to retroactively approve construction excesses. In the petition of Belinks versus the Tel Aviv District Planning and Building Committee, it was ruled that the deterrent consideration of building illegally is not the sole consideration, and the important examination in deciding, is the examination of an "empty lot," and part of the examination asks if the structure had not been built would an application according to the law have been approved. The ruling determined that every case must be examined on its own merits. The circumstances of the case can decide the fate of the application. In the case where there is a violation, and where the offense has been committed in a willful manner, with a criminal intent to build against the law in the hope that in the future the construction can be legalized such an application will of course be examined harshly. But there are many instances where the owner of the property was neither criminal nor negligent in any way. Take for example the owner of a property who bought the real estate when construction was already underway. It is true that it is the responsibility of the buyer to examine well the legality of the building, but it can happen that a person who is less familiar with certain topics is negligent in the examination, and is now confronted by a fait accompli. How is it possible to legalize an illegal construction that has already been built? Firstly, the seriousness of the offense must be examined. As a rule, offenses can be divided up into three levels of seriousness.
The first instance involves construction, which is permitted by the planning laws and city master-plan on its lot, but which has not received a building permit. For example, a person adds a third floor, which is allowed by the city master-plan that permits construction of a three-story building on the lot. However, building the additional floor is still illegal without receiving a permit and is even a criminal offense. Even construction permitted by the city master-plan requires undergoing the entire planning track until a permit is granted including tax payments to the municipality if necessary, and hearings for objections. Building which is completely in line with the plan goes into the "green track' and does not require approval by the local council but still requires approval by the licensing authority comprised of the head of the authority and the engineer who check the validity of the application.
The second instance, somewhat more complicated, is when the building does not fully comply with the city master-plan but can be partly permitted. There are allowances that which appear in the planning and building regulations but attention must be paid that the city master-plan does not prohibit these allowances. As long as the city master-plan does not prohibit this, then certain irregularities can be approved. The approval of an allowance requires publication in order to allow those who want to contest it to do so, and to ascertain that granting an allowance does not encroach on the limits of the property.
The third instance is even more complicated. It concerns construction that contravenes the urban master-plan and is a substantial deviation that cannot be approved as part of the permit application. One option is to change the urban master-plan for this location. For such a plan there is the possibility of permitting every possible construction but the process is complex and allows the public at large to contest it, and the costs are high.
An additional option is to submit an application to the administrative court. To sum up it can be said that construction offenses and applications for legalization are common in our country. Despite the deterrent considerations, it is up to authorities to also weigh up the circumstances and severity of the offense and it is therefore possible to make existing violations legal. It is important to understand that anybody can find themselves embroiled in such a situation, labeled as a construction offender due to lack of knowledge or circumstances not in their control. Therefore, it is very important to consult with a professional source on planning aspects prior to undertaking various measures such as buying an apartment, building, renovation etc.
The authors are Adv. Moshe Parzenchevski and Adv. Nitzan Zimran of Rachel Ben Ari, Adam Fish & Co. Law Firm.