After 48 years of parking their car in a space that was not theirs in a shared residential building in Rishon Lezion, a family has recently been ordered to stop. Barak Lifshitz, the land registrar for the Rehovot district, ruled that those years did not grant them an easement.
The plaintiff in the proceedings was the building’s condo board, and the defendant was the heir of the owners of one of the apartments. The building bylaws, approved in the 1980s, stated among other things that the use of eight parking spaces in the building, attached to 10 specific apartments, would be on a first-come, first-served basis. It was clarified that “this arrangement is valid only for the owners of the apartments and parking spaces listed in the section.” Despite the bylaws’ clear instructions, and although the defendant’s family apartment was not included in the arrangement, her late father and family members for many decades parked their car in one of those spaces, preventing the attached apartment owners from using it.
In its lawsuit seeking an order to halt the trespass, the condo board argued that the resident had no property right in the parking space, at most an implied license to use it, which can be revoked at any time.
The resident countered that her family’s long-term use of the parking space granted her an easement, a right to use someone else’s property that can arise from many years of use. In her written summation, she changed her version, saying the use was not of a specific space but rather based on any available spot among the eight spaces mentioned in the bylaws. She therefore argued that the easement was granted in that format.
Lifshitz explained that to acquire an easement by prescription, several conditions must be proven, including that the use is of a kind suitable to constitute an easement as defined in Section 5 of Israel’s Land Law. That section defines an easement as an “encumbrance of land for enjoyment that does not carry with it the right to possess it.” Case law, he noted, has determined that this definition includes a negative element, meaning the right does not include exclusive possession of specific land. In other words, use that deprives the owners of possession is not suitable to be recognized as an easement.
Attorney Eldad EmetPhoto: Johannes FeltenApplying those principles, Lifshitz concluded that the family’s decades-long use of a specific parking space, as originally claimed, did not create rights in their favor because an easement cannot be acquired by prescription when it includes a right of possession. He also rejected the resident’s revised claim for three reasons: it was a change of legal front, the factual basis for parking only in available spots was not proven, and most importantly, even such a right would still deprive the attached apartment owners of possession. As a result, an easement could not be granted in that way.
Lifshitz ordered the resident, as well as two other residents whose cases were accepted after they failed to cooperate with the proceedings, to vacate the spaces listed in the bylaws and refrain from using them. He also awarded the building’s condo board legal costs totaling 21,500 shekels.