Is a Real Estate Purchaser Entitled to Evict and Demolish Structures Encroaching Upon Their Land?

Another argument that may be raised by the encroacher is that the demand by the encroached landowner for eviction and demolition constitutes a violation of the duty to exercise one’s rights in good faith. In particular, the claim often is that demolition would inflict undue harm on the encroacher, while causing little or negligible harm to the property owner. Another argument is that the purchaser knew (or should have known) of the encroachment at the time of purchase, implying bad faith. Such arguments are accepted only in rare and exceptional cases, but they do exist under Israeli jurisprudence.

The leading precedent is Rocher v. Solomon (23 December 1999; “Rocher case”), involving an apartment owner who encroached upon common property in a condominium building, including through construction. This is a complex judgment: although the remedy of eviction and demolition was affirmed by the majority, each of the seven justices offered distinct reasoning.

While Rocher merits a separate detailed article to appreciate its nuances, broadly and cautiously it may be said to hold that although proprietary rights typically prevail over encroachers, they are “subject to the principles of justice, fairness, and good faith.”

The Rocher decision considered the weight to be given to the harm to the encroacher caused by demolition in assessing whether the property owner acted in good faith in seeking eviction. The duty of good faith is measured by an objective standard of a reasonable person, not the subjective state of mind of the landowner.

In general, the majority held that when a court examines whether the landowner acted in good faith, it should consider the nature of the right infringed, the degree of harm, the relationship between the parties, their conduct, and other relevant factors. The harm to the encroacher is a subsidiary consideration in the balance of interests; in that sense, the property owner’s proprietary right generally outweighs the harm to the encroacher. Accordingly, insisting on eviction despite harm to the encroacher will not ordinarily be deemed bad faith. Nevertheless, in appropriate circumstances, the duty of good faith may lead to a conclusion that eviction should not be ordered.

In the dissenting opinion of Justice Englard, he argued that when the harm to the encroacher from demolition is vastly greater than the harm to the landowner from the encroachment, and the landowner can be adequately compensated monetarily, eviction should not be ordered but rather compensation awarded instead. Justice Englard’s approach relies on utilitarian-normative considerations, arguably foreign to the classical division between property law and tort law. Under the classical view, requiring a landowner to accept mere compensation for interference with their rights dilutes the essence of proprietary protection, converting a real right into a mere monetary remedy that any wealth-holder might buy off.

There is a tendency to infer from Rocher that the proprietary right almost invariably prevails over the encroacher’s “right.” But attention should be paid to the word “almost,” because the duty to exercise rights in good faith may produce exceptional outcomes whereby a court refrains from ordering removal of the encroachment—either for utilitarian reasons or due to specific factual circumstances. Since Rocher, several cases have indeed arisen in which courts have declined to order removal, illustrating how such exceptions may emerge.