النظام القانوني لتملك الوحدات العقارية " دراسة مقارنة "
Date
2021-04-29
Authors
نزار عادل تيسير عدوان
Nezar Adel Adwan
Journal Title
Journal ISSN
Volume Title
Publisher
Al-Quds University
Abstract
This study explores one of the most important pillars on which Maslow's hierarchy of human needs is based, namely housing, which is closely related to the right to property. Humans have the right to own real estate units to fulfill their need for shelter. Due to the limited areas of land and the difficult economic situation that limits the possibility of purchasing land and constructing independent housing, all mankind went to the vertical building and the ownership of real estate units. Of course, this leads owners to share one building together, to act and benefit from the common parts specifically. As a result, this formed a motive for the researcher in raising the question about the reality of conditions and restrictions imposed on the use of common parts. In addition, what is the impact of the increase in the number of real estate units owned by a single owner on his ownership of the roof, and what is the fate of the land ownership if the building is demolished?
To address this problem, the researcher followed the comparative analytical methodology, and divided the study into an introductory section and two chapters. The introductory section generally has dealt with the right to property to clarify its concept, its components, its scope and the reasons for acquiring ownership. The first chapter was devoted to dealing with the sources of ownership of real estate units and the methods of their transfer from one hand; in addition, it has clarified the procedures for transferring ownership of real estate units and the necessary conditions for that, on the other. Moreover, the second chapter dealt with the ownership of real estate units by indicating the rights and obligations of the owners, and ownership in the common parts.
At the end of this study, the researcher concluded that ownership of real estate units includes ownership of partitioned parts and ownership of common parts. The real estate unit in itself represents the partitioned part of the building where the owner's disposal and use of his real estate unit must be within the limits and restrictions of the observance of
خ
the rights of the rest of the owners, i.e. exercising the right without harming. The freedom of a person ends when the freedom of others begins. However, the ownership of the common parts can be said to be the ownership of the parts intended for joint use by all the owners of the building at the same time, and where all the owners benefit from it, and each owner has a common share in the common parts of the building. The ownership of real estate units is transferred by actions or material facts; legal actions may be bilateral, emanating from two wills - held by offer and acceptance - such as selling on plans, selling in installments, selling fully equipped real estate units, and the gift contracts. On the other hand, it may be a unilateral issued by a single will, such as a will issued by the deceased prior to the realization of death.
As for the material facts, they are just facts that lead to legal effect; the material facts - the legal facts in their narrow sense - include the harmful act, the beneficial action and the law.The transfer of ownership of real estate units is not envisaged by a harmful act or a beneficial act, rather, it can be transferred by law through inheritance, the right of preference, and the right of upper and lower floors. The owner of the lower floor shall provide the right of decision to the owner of the upper floor by making the necessary repairs and restorations to prevent the destruction of the upper floor.
Moreover, it falls upon him the responsibility to build the dilapidated lower floor. However, the owner of the upper floor has the obligation not to raise the walls of his height, for example, or to build another floor above his floor, especially if the building foundations do not bear the construction of another floor or if this constitutes a danger and a harm to the owner of the lower floor. He is not required to demolish his upper floor, and he must not do anything that negatively affects the lower floor, such as placing weights on the roof or otherwise.
Accordingly, the owner of the upper floor shall is forbidden to do any act that damages the lower floor. In addition, there is an obligation to maintain the floor of the upper floor in order not to damage the lower floor ceiling. Therefore, he works on repairing water, electricity and tiles networks and treating the problem of moisture, if any, as it affects the roof and walls of the lower floor and may cause the building to collapse.
Description
Keywords
Citation
عدوان، نزار عادل. (2021). النظام القانوني لتملك الوحدات العقارية " دراسة مقارنة " [رسالة ماجستير
منشورة، جامعة القدس، فلسطين]. المستودع الرقمي لجامعة القدس. https://arab-scholars.com/154cf0