Planning and construction lawyer
Objections to demolition
Administrative demolition orders are issued by local planning and building committees. A court order was issued against the following: the construction of a building without a permit, construction of a building that deviates from a city structure plan or a local outline plan, or against the use of an unusual building without a permit or in deviation from the permit.
This administrative demolition order is intended to enable the authorities to deal quickly and efficiently with illegal construction and to prevent “determining facts on the ground.”
By Igal Mor, Adv. & Notary
Accuracy in Legal Advice. Excellence in legal support.
What's a demolition order?
This is a lawfully enforceable administrative demolition order. A relevant section of the law is 239(a) of the Planning and Construction Law.
The order specifies that the court may, as defined by the law before that, order the demolition of an illegal work upon the request of the plaintiff, even if no indictment has been filed. As long as the order serves a special public interest. There is also an order for the demolition of work A and cessation of use contrary to a judicial cessation order, which is detailed in section 237(a) of the Planning and Construction Law, which gives the director of the national enforcement unit or the engineer of the local committee authority to order the demolition of work in violation.
It is an order to demolish or stop using a work in contravention of a judicial stop order
237. The director of the national enforcement unit or the committee’s engineer may order the person to destroy the work performed or the use made contrary to a judicial stop order, upon receiving a written report from an inspector as detailed in subsection (b). A judicial stop order can be given when an inspector submits a written report to him which indicates that the work was carried out or the use was made in violation of the order. If more than one year has passed since the date when the order was issued, the order may not be issued unless the competent court approves it as described in section 234(c).
As stated in the order, the court may, upon request from a plaintiff, order the demolition of a prohibited work, even if no indictment has been filed. As long as there’s a special public interest. There is also an order for the demolition of work A and cessation of use contrary to a judicial cessation order, which is detailed in section 237(a) of the Planning and Construction Law, which gives the director of the national enforcement unit or the engineer of the local committee authority to order the demolition of work in violation.
How did the order get issued?
Under the law, the court may issue a demolition order only if the following conditions are met:
- It’s impossible to find the person who did the prohibited work.
- It is not feasible or practical to deliver a subpoena to someone with reasonable diligence.
- לא ניתן להוכיח מי ביצע את העבודה האסורה.
- The person who performed the prohibited work has passed away, or is not punishable, including as a result of the statute of limitations that applies to such an offense.
- A prosecutor has decided that further investigation and prosecution are not appropriate under the circumstances of the case.
- It is the national enforcement unit, the local committee, or a local authority authorized to enforce the order if 21 days have passed since the order was issued.
This demolition order is meant to help authorities deal with illegal construction quickly and efficiently and prevent "facts on the ground" from being established. It is during the administrative phase that enforcement should be carried out in the field of planning and construction. Illegal construction in the making may be enforced during the administrative phase. A construction that violates the law in planning, in the environment, or in the rule of law is the most limited. In the administrative phase, the enforcement against illegal construction is the simplest and most effective, because it's the easiest and easiest to execute the orders and demolish the construction at this stage, and its damage to the builder is the lowest. One of the main tools for enforcers at the administrative level is demolition orders, The right use and implementation of administrative demolition orders creates a real deterrent in light of the relative urgency with which the order is executed, thus restoring the situation to its original state In light of the continued proliferation of illegal construction, an administrative demolition order cannot be viewed as a punitive measure, but rather as a violation of the fundamental right to property. It has the potential to cause significant financial damage - therefore, the use of the authority must be done in a responsible and informed manner. The provisions of the law permit the enforcement authorities to be reimbursed for their expenses in carrying out the enforcement. It encourages self-demolition, when the builder's investment is still relatively small, by demanding reimbursement of demolition expenses from the property owner
Why do demolition orders come from the engineer or the director of the national enforcement unit?
To issue the demolition order, an engineer must provide a reasoned opinion. It should be decided by the local committee that appoints the engineer. It should include a claim that the building, or part of it, was constructed without the proper permits or without any construction. Permits required are: TBA – city building plan, TMA – local outline plan, or TMA – national outline plan. Note that this is an order given only in very serious cases, and that it may be exercised by the authority.
What's the order for?
The order gives the authorities an efficient and quick way to fight illegal construction. In other words, we want the local authority to be able to demolish new construction that didn’t get a permit quickly and efficiently. It is important to note that the legislator restricted the court’s ability to intervene in this matter to a few limited grounds.
Order's invention
It is affixed to the property, along with the documents on the basis of which it was issued, and demolition can begin within 24 hours, and in any case within 72 hours. The order cannot be executed after 30 days from the date the order was issued or after the decision rejecting the cancellation request.
A request for opposition to a demolition order
It is necessary to submit an application for the cancellation of an administrative demolition order, or for its cancellation, within three days after learning of its issuance. A person who is harmed by the demolition order, even though he was not a party to the request for the order, may submit a request for cancellation within 21 days of the order’s issuance.
An order for demolition without criminal proceedings:
239. (A)) Regardless of whether an indictment has been filed, a competent court may order the demolition of a prohibited work at the request of the plaintiff, provided that there is a special public interest in doing so and one of the following conditions is satisfied:
(1) The person who performed the prohibited work cannot be found, with reasonable diligence;
(2) It is not possible or it is not practical to deliver a subpoena to a person, with reasonable diligence;
(3) It is not possible to prove who performed the prohibited work;
(4) The person who performed the prohibited work has died or is not punishable, including due to the statute of limitations that applies to the offense of prohibited work;
(5) The prosecutor decided that the circumstances of the case as a whole are not suitable for further investigation or criminal prosecution according to Article V.
(B) The provisions of section 226(b) will apply regarding the creation of a demolition order according to subsection (a), with the required changes.
(third) A demolition order according to subsection (a) will be carried out by the national enforcement unit, the local committee or a local authority authorized for enforcement, provided that at least 21 days have passed since the order was issued.
What do you need to know?
In other words, since the order will be executed within a few hours or days, a very rapid application must be made to the local affairs court. Hearing of the request will be scheduled within seven days of its submission. It is very important that in order to delay the execution of the demolition order, a request for a delay in the administrative demolition order must be submitted. The court can delay the order for 15 days and, if a hearing is held during these days, can extend it further.
In order for the order to be canceled, what must be proven?
There are two conditions for canceling an order:
- The property was built more than 60 days after the engineer’s affidavit was submitted, which led to the order. Often, the property isn’t ready for habitation, for example if it’s missing doors or windows, so pay attention to this. Sometimes they’ll see small flaws as negligible and treat such a structure as a done deal.
- The building, in relation to which the demolition order was issued, has been occupied for over 30 days.
Cancellation request without criminal charges
240. If you’re harmed by a demolition order, and you weren’t a party to the request for issuance of that order, you can ask the competent court to cancel it within 21 days from the date the order is mailed as stated in section 226(b) as applied to section 239(b).
Can you make administrative claims?
Similarly to any administrative decision, it may be challenged on the basis of one of the following grounds:
- Deficiency of authority
- Legal incompatibility
- Improbable
- An inefficient administrative process. Correctness of the administrative procedure and reasonableness are two reasons why discretion can be exercised by the authority.
- Did the committee have a good factual foundation?
- Decisions can be invalidated if discretion isn’t exercised, or if it’s exercised arbitrarily.
If the property is abandoned, it’s possible to assess the damage to the public interest. It might be a small injury compared to the damage the demolition will cause.
A few things to consider when determining the "guilt index":
Often a demolition order is issued as part of a criminal punishment and not as part of an administrative procedure, and a question arises regarding the degree of the defendant’s guilt.
From the judgment of the Honorable Judge Hisham Abu Shahada, Tax Code 47071-10-10 Local Planning Committee Shoham v. Zuckerman et al.
An explanation of how the “degree of guilt” is determined in the crimes of “illegal construction” and “illegal misuse”
- There are different degrees of guilt in the commission of a crime, which is the basis for the expression “degree of guilt.”. Based on English law, I think there are three main types of guilt:
A. High type of Guilt
B. Medium type of guilt
C. Low-level type of guilt
- The parameters established in the ruling to distinguish between degrees of guilt for the offense of “illegal construction” or “illegal abnormal use” are as follows:
A. Profits from construction or abnormal uses;
B. Duration of the suspension of the illegal construction, or duration of the illegal use;
C. Demolition of the illegal construction or cessation of the illegal use before the sentence is handed down;
D. Court order violation.
Below, we’ll talk about each of them.
The profit the accused made from the construction or from the abnormal use of the property
- As far as the defendant made more financial gain from the construction offense or the illegal use offense that he committed, his level of guilt should be higher. A financial profit can take different forms, including the actual profit made from the crime or the savings made in the financial expenses he would have incurred had he not committed the crime. Peshita, that there is no trial of a defendant who made a profit of NIS 5,000
An offense of illegal construction or unauthorized illegal use committed by a defendant who made a financial profit of NIS 100,000 from committing the same offense. - Article 63(a) LLaws and penalties “For an offense involving causing a pecuniary loss to another person or obtaining a benefit for himself or another, the court may impose a fine equal to four times the value of the damage caused or the enjoyment gained, or the fine established by law, whichever is larger.”
(The emphasis is not in the original).
- According to Ref. 4679/10 Shimshon v. Municipality of Tel Aviv-Yafo [published in Nevo] (1.8.2011), section 63(a) of the Penal Law can be applied to offenses under the Planning and Construction Law (section 13 of the judgment of the honorable judge Danziger) (hereafter: Halach Samson).
- According to the Samson rule, the maximum rate of the fine that can be imposed on an accused based on section 63(a) of the Penal Code is not the benefit of enjoyment the accused intended to get, but the benefit of enjoyment he actually got. As a result of committing an illegal construction offense, the benefit of enjoyment is the improvement of the property. It does not matter whether the improvement is fully realized through the sale of the property or partially through the rental of the property. This increase in value is the result of the enjoyment gained following the commission of the offense (paragraphs 24 to 26 of the Samson Law).
- During the sentencing process for construction offenses, the Honorable Judge Danziger summarized the following considerations: “After these words, I find it necessary to emphasize that even though this is my position regarding the maximum value of the benefit of pleasure produced, the determination of the rate of the fine must be made in each and every case after the investigation has examined the circumstances of the case, including the following issues: (a) What Funds actually received by the offender or that their removal was spared due to the offense; (b) Whether performed Deconstruction of the structure prior to sentencing(c) Was a demolition order issued as part of the sentence so that the illegal construction could be demolished in a timely manner; and, (d) Did additional fines apply to the applicant in accordance with the various provisions set forth herein.Law of Planning and Construction. מובן כי אין המדובר ברשימה סגורה וכי מנגד יש לשקול את חומרת המעשים שבוצעו ואת היקפם, כמו גם נסיבות נוספות שעשויות לשמש כשיקול לחומרה או לקולא בגזירת עונשו של העבריין.
It is my opinion that where an illegal construction has been destroyed before the sentencing or is expected to be destroyed in the near future, there is no reason to impose upon the offender the full fine that can be imposed according to Section 63(a) of the Penal Law.”
- In cases where the accuser claims that the accused actually derived a benefit from the construction he carried out, or from the abnormal use, the evidence is there and it can be demonstrated by bringing a suitable opinion or other appropriate documents to the court. In the stage of arguments for punishment, the accuser must prove beyond a reasonable doubt that he is a material circumstance. If the accused claims he made a low profit from the crimes he committed, and that was the basis for his acquittal, he must prove this on the balance of probabilities (see p.(c) of Section 40) toCode of penal law).
Support From a Lawyer is Essential
Did you get a demolition order or a stop work order?
Please contact us immediately.
More & Co. has extensive experience in real estate planning and construction law.
Contact us to coordinate an urgent legal consultation. We will immediately submit a request to cancel the demolition order or, at the very least, delay administrative proceedings.
