(translated from the Hebrew newspaper, Makor Rishon, Friday May 11, 2012)

Executive summary:

In actual fact, the courts never ruled that the law requires destroying the five Ulpana hill buildings in Beit El.

The court never ruled that they are on private land, and that the claimants are the owners of that land.

The court never discussed the above three questions. It asked the government what its position on the matter is, what it recommends, and the legal department answered that its position is that it is private land and that the government's policy concerning land on which Jews have settled is as follows: if construction is on government land, it must be legalized and if construction is on private land, it must be removed. The courts made decision in accordance with that government policy.

Is the government's policy mandated by law? Does the law demand that the houses be destroyed?

Prof. Shalom Lerner, one of the most respected legal experts in Israel on the subject of land ownership, has written a letter to the Prime Minister in which he says that the answer to both questions is negative.

This is his letter:

To:

Prime Minister Binyamin Netanyahu, Minister Moshe Ya'alon, Minister Zeev Binyamin Begin, Gov't Sec'y Tzvi Hauser

Re: The policy of removing homes built on private land by Jews

1. Government policy, as reflected in its responses with regard to suits involving unauthorized construction by Jews in Judea and Samaria (henceforth,Yesha) is that "in general, unauthorized construction situated on private land should be removed, and at the same time, steps to authorize edifices on state land should be put into motion at the appropriate levels." The government announced that this was decided in a meeting of the Prime Minister and his cabinet on February 28, 2011.

2. This policy (henceforth, the Removal Policy) is of crucial significance with regard to the fate of settlements at various sites in Yesha. However, it is  unclear what the basis is for differentiating state land from private land, and why all construction on private land is to be destroyed. If the basis for this policy is the desire of the state to prevent harm to the rights of ownership of Arabs living in Yesha, then applying it indiscriminately without room for judgment in specific situations, may cause more extensive damage to both Arab and Jewish rights of ownership.

3. The policy does not leave room for deliberation in individual cases and requires that all unauthorized buildings on private land be removed.  This policy contradicts Israeli principles of ownership as well as the laws that apply to Yesha. When construction takes place, in good faith, on private land,  the owners do not always have the right to demand its removal. In various instances, he who built in good faith on his neighbor's land, is entitled to receive ownership of the land, while the original owners are entitled to financial recompense from he who built on the land without knowing its true ownership. For more extensive coverage of this issue, see the opinion of Dr. Yaakov Weinrot and Dr. Harel Arnon of December 6, 2011. The undersigned believes that this opinion is an accurate reflection of present legal status.

4. I would like to direct your attention to an issue that was not addressed by Weinrot and Arnon. The Supreme Court has already ruled that the principle of good faith in par. 39 to the Law of Contracts (general law) is a meta-principle, a sovereign principle, that applies to all fields of law, including Laws of Ownership.

See: 2643/97 Shlomo Gazn v. British and Colonial Lim. Chap. 4, 57 (2) 385, par 16 of former Chief Justice Aharon Barak, as follows:

"The Principle of [acting in] Good Faith is within the boundaries of the Laws of Land Ownership. Therefore, these laws do not stand independently, but are part of our civil law. The Principle of Good Faith is applicable to all civil law, and therefore on land ownership. Laws of Land Ownership are a link in the chain of the new Israeli law. It is an important chapter in the "Israeli version" of a civilian code of law. This must be seen as a unified code..every legal action, all rulings and all negotiations must be in good faith..the general principle of good faith is a normative umbrella covering all the policies of land ownership."

5. This approach was used in the case of a cooperative residence where one owner built a storeroom on shared property, which was a clear encroachment of the rights of the other owners. The courts did not mandate destroying the structure as written in par. 21 of the Laws of Ownership - 1969, but said that the Principle of Good Faith mandates investigating the harm versus the benefit to those involved if the structure is destroyed or allowed to remain standing. In other words, the court found that the Principle of Good Faith stands above par. 21 cited above.

 The owners must also act in good faith towards the encroacher. That obligates the court to deal with the individual circumstances of a specific case, the harm that will come to the owners as opposed to the benefit to the encroacher if he is not told to destroy the structure.

This is what par. 10 of former Chief Justice Aharon Barak's opinion says: "The extent of harm and the psychological state of the one who inflicts damage influence the applicability of the good faith principle.Lasting and deep damage is not the same as slight harm; temporary harm is not the same as permanent harm; harm that is the result of error is not the same as purposeful harm; harm that can be compensated for financially is not the same as harm for which money is not a fitting recompense. Thus, the extent of the applicability of the Good Faith Principle takes all the relevant, individual factors into consideration."

6. From the above, it is clear tha the question of removing an encroacher's structure built in good faith on his neighbor's land is a weighty one, and demands careful individual and exacting evaluation of the facts in each specific case. Sometimes, the Principle of Good Faith will lead to the court's transferring ownership of the land to those that built on it, while giving just compensation to the original owner. In addition to the above principle, Weinrot and Arnon have shown extensively that this is also in accordance with the laws applicable in Yesha. Also, in many instances, the entire question of land ownership is not a simple one and demands a careful study of documents and facts. These questions must be dealt with in the suitable civilian court and not by an all-encompassing administrative dictate.

7. Bearing this in mind, the recommendation to relevant authorities should be to refrain from indiscriminate use of the Policy of Removal.  Deliberate use of that policy without individual and specific deliberation on each case do an injustice to the Laws of Land Ownership. We turn to you so that you will act to redesign the Policy of [structure] Removal in accordance with the opinions of Weinrot and Arnon as elucidated above.

Respectfully yours,

Professor Shalom Lerner