Today is the 14th of February. Many will celebrate Saint Valentine’s Day by giving chocolate, cards, and roses.

But who was the real Valentine and what does he have to do with law?

The legend of St Valentine’s started with one young priest deliberately breaking a law, that enacted by Roman Emperor Claudius II. During his reign, Claudius had decided that single men made better soldiers, for they could focus better. So, he outlawed marriage for young men.

But Valentine would not have it, and continued performing wedding ceremonies in secret.

It is said that Emperor Claudius eventually discovered everything, had Valentine arrested and sentenced to death. During his time in prison, Valentine fell in love with his jailer’s daughter, who used to visit him in prison. It said that prior to his execution, he had signed off a letter to the girl with “from Your Valentine”.

Valentine was martyred on the 14th of February, 270 AD.

Today, a similar blanket marriage ban is unlikely to survive a human rights challenge. In fact, article 12 of the European Convention on Human Rights provides that “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

There is still a margin of appreciation for states to exercise; but the general rule is, marriage bans are discouraged. Certainly, the right to marry is subject to national laws on marriage, including those that make marriage illegal between certain types of people (for example, close relatives), but any restrictions must not be arbitrary and not interfere with the essential principle of the right.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja at carlos@azzopardilegal.eu.

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The right to property is protected by the European Convention on Human Rights; therefore, rendering it also a protected by our Constitutional courts. In principle, this means that no one may forcefully take one’s property. Naturally, as with most other laws, there exist certain exceptions (such as cases of expropriation with just compensation). But with most cases, one can enjoy his property without State interference.

The right to property has taken Malta by storm in the last few years. A large number of Maltese landlords (thousands) have suffered the legislative labyrinth created by the continuous development in our rent laws. Two laws are the main culprits: contracts of lease which predate 1995 (under Chapter 69 of the Laws of Malta) and temporary emphytheutical concessions converted into permanent leases (Chapter 158 of the Laws of Malta).

In brief terms, Chapter 69 (the Reletting of Urban Property (Regulation) Ordinance) and Chapter 158 (Housing (Decontrol) Ordinance) had been introduced and amended in order to protect the interest of the general public at the time of their promulgation, by creating protected ‘leases’ that could not be terminated. Basically, on the expiration of the period of occupation agreed to between the parties, the lease did not end, continued, and the landlord could not refuse to renew it from year to year. He had to remain in the lease, whether he liked it or not. To add insult to injury, both laws also placed enormous limits in how rent may increase from year to year – in most cases, rent could only increase in proportion to the yearly COLA increases (which could literally mean an increase of for example five euro every three years). We therefore have beautiful houses in Valletta being rented for €209 a year, properties that on the free market may easily fetch €2000 a month. These laws meant that landlords could neither increase the rent to reflect the market prices nor take back their property.

In time, landlords started to resort to our courts of constitutional jurisdiction to obtain a remedy. The number of these cases are plentiful today, and usually (with some exceptions) go through the following steps:

An Application is filed in court

The court application primarily consists of the landlord’s claims and the remedy that is being requested, and it is made against the tenant and the State Advocate (as legal counsel to the State). The remedies requested are usually two: one against the State Advocate, consisting of a demand for adequate compensation, and another against the tenant, consisting of a declaration that the lease in question is affected by a law that is in violation of Article 1 Protocol 1 of the European Convention of the Human Rights.

At times, an attempt is made to evict the tenant in order to regain back the peaceful possession of the property. This, however, has proven to be a legal tug-of-war between domestic courts and the European Court of Human Rights, with the Maltese courts still very reluctant to directly evict tenants, instead opting to merely declare that the tenant would no longer be able to rely on the articles at law in question to remain in the lease. After that, the landlord would have to file a second lawsuit, and seek eviction before the Rent Regulation Board.

During the hearing of the case, one must usually provide documentation proving his or her title over the property, provide evidence as to the duration of the ‘protected lease’, and provide evidence as to the rent received throughout the years.

The Respondents will reply to the case

The respondents (the tenant and the State Advocate) will file their reply, stating why in their view the court should not accede to plaintiff’s request. Usually, the parties will attempt to make the argument that these old rent law manage to create a balance between the rights of the landlord and those of the tenant, and that therefore, they are not in breach of the fundamental right to property. The tenant will also usually attempt to exculpate himself/herself, stating that he or she is not responsible for the promulgation of laws, and so, any declaration that a law is in violation of the European Convention on Human Rights is not to affect him, and that he should not be burdened with the costs of the case

A Date for the First Sitting is appointed.

A date is appointed for the first sitting. At times, this proves to be an important sitting because any preliminary objections are raised and addressed — objections which are sometimes capable of putting the proceedings at a halt or even dismiss the case at once.

An Architect is appointed

Usually then, plaintiff (the landlord) requests that a court-appointed architect is engaged in order to give an indication of the rental market value of the property in question through the years. The architect is responsible to draw up a report highlighting various important information about the property, such as whether there were any changes made, any deterioration taking place, and so on. This aids the court in two manners: it allows to see whether there is a substantial discrepancy between the rent received by the landlord and that available on the market, and what kind of compensation would be suitable to remedy the harm suffered by the landlord in view of these rent laws, if in the circumstances of the case they are deemed to be in breach of the landlord’s fundamental human rights. In nearly all the cases, the expenses for the services of the court-appointed architect is provisionally and initially paid by the plaintiff (the landlord), who will only publish his/her findings after having been paid.

Parties are allowed to produce witnesses, bring evidence, and ask questions to the court-appointed architect.

Parties may bring witnesses, produce evidence and submit in court any relevant proof. Thereafter, the parties will be given the opportunity to make final submissions.

Judgment

A judgment is then given by the court. The court will state whether there have been any violations of the landlord’s human rights, and if so, it will liquidate the amount of compensation to be paid by the State Advocate to the landlord. Never there has been a case where the tenant was obliged to pay compensation, and it is also extremely rare for the tenant to be condemned to pay the costs of the case. There have been limited cases in the past where eviction was also requested and then considered as one of the remedies to be given; however, in the past years, our courts have mostly limited themselves to declare that the tenant would, from the date of the judgment, no longer be able to rely on that law declared to be violating the landlord’s human rights to remain in the property leased. Then the plaintiff would have to file another case before the Rent Regulation Board to seek eviction, unless of course the parties find some sort of agreement.

The parties can then appeal before the Constitutional Court.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja at carlos@azzopardilegal.eu.

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The Czech proverb “A good neighbour increases the value of your property” is perhaps one of the most relatable proverbs when considering the increasing number of condominium accommodation that is available on the market today.

The Condominium Act regulates situations where the respective owners of separate units within a building or group of buildings also enjoy rights of ownership or the enjoyment of the common parts together with the other owners, known as condomini.

The Common Parts are most commonly defined in the deed of acquisition of the property, and unless the contract states otherwise, the following are considered to form part of the Common Parts, even if one or more owners do not make use thereof:

The entrance doors, the lobbies, corridors, the stairwells, the courtyards, the gardens, the airspace above the whole property and in general, the land on which the building is constructed, the foundations, the external walls, including the common dividing walls with neighbouring tenements, the roofs, the shafts, the stairs all the other parts of the property which are intended for the common use.  As well as, all  facilities intended for the common use, such as the  parts  used  as  a  reception  and  as  a  common washroom ,the parts used as a porter’s lodge, for the  central  heating  equipment,  lifts,  wells,  cisterns,  aqueducts,  sewers,  drainage pipes,  all  installations  for  water, gas,  electricity, heating  and  similar  services  up  to  where  the  said installations branch off to the exclusive property of each owners, and works, installations and objects of  whatever  type  intended  for  the  common  use  or benefit.

Why go through the trouble of registering a condominium?

The answer is simple: not all of us are lucky enough to have a good neighbour.

The registration of a Condominium provides a mechanism for the better administration of the common parts, through the appointment of an administrator (being either a condominus or a third-party) who shall represent the condominium in all its affairs, and is entitled to act on behalf of the condominium, including to claim payment from any owner of his share towards the common expenses.

Once the condomini decide to register their condominium, they may start the process by compiling the documents to be submitted to the Land registry, initially by ordering the land registry site plan, and also by the drawing up of the Condominium Rules which require the approval of a two-thirds majority of the units represented during the meeting.  The condominium rules are  to be signed by all those present at the meeting on each page as well as in table format on the last page, including unit number, owner’s name, identity number and signature.  All this with hope of reducing the possible conflicts arising with one’s neighbour.

In larger condominiums, co-owners may opt to appoint multiple or joint administrators the manage the condominium in a collective manner, however only one may be registered with the Land registry.

The condomini shall then record the  agreement reached, whether it was for the appointment of the administrator or the drawing up of the rules by virtue of a resolution signed by the co-owners present and the proxies’ of the absentees.

Upon drawing up of such rules establishing the use of the common parts and the apportionment of expenses in connection with the common parts, the administrator shall indicate using the relevant form whether he would be registering a first registration, change of administrator or re-appointment of administrator and a separate form shall also be submitted to the land registry to file the rules drawn up.

Certain alterations or innovations to the common parts require the unanimous consent of all the condomini to take effect, such are those  which  change  the  aesthetics  and  decor  of  the condominium, those which seriously affect the use or enjoyment of any common part by any of the condomini and those which may prejudice the stability or the security of the building.

On the other hand, alterations or innovations which bring about an improvement or the more comfortable use or the better enjoyment of the common parts, such as the widening of the entrance door, the installation of a lift, the installation of a hall-porter system and the  conversion  of  a  yard  into  a  garden  or  into  an internal parking space shall be valid if approved by a number of condomini representing not less than two-thirds of the units represented during the meeting.  The same threshold must be met when taking other decisions such as the removal of the administrator, the approval or amendments of the rules and the inter alia, the undertaking of extraordinary repairs.

Unless specifically requiring a higher threshold as indicated in Chapter 398, other decisions shall be valid if approved by a simple majority of the units represented during the meeting and subsequently such decisions shall be binding on all condomini.

The rules shall also provide the applicable procedures for the implementation of certain decisions concerning the common parts; such as the making of alterations to or innovations in the common parts which bring about an improvement or the more comfortable use or the better enjoyment of the common parts such as the installation of a lift.

It is advisable for any prospective buyer to review the terms of the proposed deed of acquisition to ensure that there are no anomalies or irregularities and if a condominus is not satisfied with any matter which concerns his rights or obligations vis a vis the enjoyment or use of the common parts, he may in certain cases refer the matter to arbitration.

Should you require further assistance, including when facing issues with owners who remain in default of their contribution to the condominium you may contact any member of our firm.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Rebecca Mercieca at rebecca@azzopardilegal.eu.

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The following is the ninth article in a series of articles delving into the GDPR, intended to give an overview of the main aspects of the provisions it introduced, retained and updated in the data privacy law regime of the European Union, and its legislative implementation in Malta. 

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In this part of this article, we shall continue the analysis of the right to erasure and its grounding in the right to object (as per Articles 17(1)(c) and 21 GDPR).

While a data controller can call upon the right to erasure to be based in at least one of the six main grounds for its exercise, one of the grounds available to the data subject is the exercise of the right to object.

When the ground called upon by the data subject is the right to object, one has to consider when the data subject can exercise such a right to object, being: (i) when the legal basis for processing are Articles 6(1)(e) or 6(1)(f) GDPR as per Article 21(1) GDPR; and (ii) in cases involving direct marketing as per Article 21(2) GDPR. It apparently follows that the exercise of the right to erasure as grounded on the right to object is further limited to the provisions of Article 21(1) and 21(2) GDPR, being the grounds for the exercise of the right to object itself.

Article 21(2) is the more direct and straighforward of the lot and basically gives an absolute right to object in cases of direct marketing. In such cases objecting to data processing and, if desired, making a request for erasure should prove comparatively straightforward and successful. That is, assuming there are no other grounds for the data processing or applicable restrictions to the right to object or the right to erasure.

However, Article 21(1) GDPR requires more discussion, as it is conditional on the legal bases for data processing as provided by Article 6(1)(e) and 6(1)(f) GDPR. A reminder of these legal bases for data processing is fit:

“(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.”

N.B. The proviso to Article 6(1) GDPR makes it clear that Article 6(1)(f) cannot be used by public authorities in the performance of their tasks.

The above seems to be provide quite a restrictive scenario, and on paper it is. However, the GDPR broadened the application of the right to object significantly in relation to Article 21(1) GDPR, and this further opens up the possibilities to exercise the right to erasure. Indeed, in the previous part of this series we have already referred to the GDPR novelty related to the inversion of the burden of proof in favour of the data subject, in the sense that the right to erasure as grounded in the right to object now does not require the data subject to prove that he has “compelling legitimate grounds relating to his particular situation”. The latter was a requirement to exercise the right to object under the previous law. The GDPR broadens the same right to object further by rewording the requirement to “grounds relating to his or her particular situation”. This alone allows for a broader application of the new GPPR right to erasure.

It must be added that if request to exercise a right to erasure falls within the GDPR parameters discussed above, then such a request is to be acceded by the controller unless the latter “demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims”. It is the data controller which has to demonstrate the applicability of the same limitations to the right to erasure, and it is probable that a restrictive interpretation of the same would be applied by the competent adjudicators. This is an aspect best left for future discussion.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Edric Micallef Figallo on edric@azzopardilegal.eu.

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The Christmas of 1843 was part great and part horrible for the good old Charles John Huffam Dickens, commonly known as Charles Dickens. On one end, he published the ever so famous ‘Christmas Carol’, selling out six thousand copies in just one week. On the other hand, Dickens was immediately a victim of pirated editions, aided by the often complete lack of international copyright regulation and England’s reluctance to enforce copyright laws in general. He ended up spending more money in legal battles than he was making from the book itself.

Today, copyright laws are much tighter, and it is unlikely for modern authors to face the same holiday misfortunes.

This anecdote is evident of an irrefutable fact: Law literally affects everything, even Christmas.

The Game Act 1831 was an Act of Parliament in the United Kingdom which was passed to protect game birds by establishing a close season when they could not be legally taken. It is an offence to kill or take any game, or use any dog, gun, net or other engine or instrument for the purpose of killing or taking any game, on a Sunday or on Christmas Day. If one is to indulge in excessive meaty food, he is to acquire the food on a different day.

In fact, it is often stated that there was one Christmas in which eating mince pies was illegal, since it fell on a legally-mandated day of fasting.

A request for waiver of this rule was sternly refused by English Parliament:

“Whereas some doubts have been raised whether the next Fast shall be celebrated, because it falleth on the day which heretofore was usually called the feast of the Nativity of our Saviour. The Lords and Commons in Parliament assembled doe order and ordaine that publique notice be given that the Fast appointed to be kept on the last Wednesday in every moneth ought to be observed until it be otherwise ordered by both Houses of Parliament: And that this day in particular is to be kept with the more solemn humiliation, because it may call to remembrance our sinnes, and the sinnes of our forefathers, who have turned this Feast, pretending the memory of Christ into an extreame forgetfulness of him, by giving liberty to carnall and sensual delights, being contrary to the life which Christ himself led here upon earth, and to the spiritual life of Christ in our souls for the sanctifying and saving whereof Christ was pleased both to take a human life, and to lay it down again.”

One would also be advised to proceed with caution before ringing doorbells and sing carols, for it is illegal (even under Maltese Law) to ring the bell of any other person’s house or building, or to, at night time, disturb the repose of the inhabitants by rowdiness or bawling, or in any other manner.

In England, back in the 17th century, Puritan laws required that stores and businesses remain open all day on Christmas, and town criers walked through the streets on Christmas Eve calling out “No Christmas, no Christmas!” They believed Christmas was used as an excuse for drunkenness, promiscuity, gambling and other forms of excess.

A Popular Royalist ballad written in 1646 fully captured the feeling at the time:

“To conclude, I’ll tell you news that’s right,
Christmas was killed at Naseby fight:
Charity was slain at that same time,
Jack Tell-truth too, a friend of mine,
Likewise then did die, roast beef and shred pie,
Pig, Goose and Capon no quarter found.
Yet let’s be content, and the times lament,
you see the world turned upside down.”

On the Restoration of King Charles II in 1660, the traditional celebration of Christmas was also fully restored.

Malta, being predominantly Catholic, hardly ever faced any attempts from law makers to ban anything Christmas, for very few would even dare to prohibit catholic celebrations of any kind. The mass reaction of the Maltese people in year 1798 when the French attempted to restrict Catholic practices is a good enough deterrent.

However, Christmas Day does not continue to be without regulation, but these times it is to ensure that the day may continue to be celebrated. The first court vacation (on the end of what is known as the Victory session) starts on the seventeenth of December to the sixth of January inclusively. The 25th of December is officially a paid public holiday (Chapter 252 of the Laws of Malta), and the 26th December of this year is officially declared to be a bank holiday (Subsidiary Legislation 371.07). Catering establishments are normally permitted to open until 1:00am, but may remain open for business until 4.00 a.m. of the morrow on Carnival days, Easter Saturday, Christmas Eve and New Year’s Eve.

Today, the law seeks not to prohibit Christmas, but rather to promote it, as long as things are done in moderation. Indeed today, our law is very harsh on drunk drivers, and this rightly so.

So enjoy these holidays, but do not drink and drive. Ultimately, Christmas will always be as long as we stand heart to heart and hand in hand.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja on carlos@azzopardilegal.eu.

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In Malta, the 17th of December is the feast day of the Catholic patron saint of lawyers, this being Yves Helory de Kermartin, traditionally known to us as Sant’Ivo. Why this is the celebrated date it is not really known, since really and truly, he is commonly and widely celebrated on the 19th of May all around the world.

Be it as it may, every December 17, lawyers take off their togas, and convene together outside the law courts, and away from the daily hustle and bustle of the courtrooms, to celebrate together a year of hard work.

Sant’Ivo was born in Kermartin, near Tréguier, Brittany (today a part of France), on the 17 October, 1253 and died at Louannec, on the 19th May, 1303. Sant’Ivo was the son of a nobleman and from a well to do family. He first studied civil law and later canon law and was learned thereon. It is said that among his classmates were the likes of Duns Scotus and Roger Bacon.

He also studied theology and is said to have also joined the Third Order of Saint Francis, being what in Maltese we might call a ‘terzjarju’, although he was later ordained to the priesthood too. Due to his charitable disposition, he became known as the advocate of the poor, especially since he represented the helpless and paid for their expenses in court. He also visited those he assisted in prison. All this presumably as higher acts of charity rather than out of professional duty and diligence.

He was above all an incorruptible diocesan judge, refusing the bribes that were the order of the day, and working to settle claims out of court in order to save the litigants time and money.

Sant’Ivo was also an ecclesiastical judge, and that might also be why certain sources also describe him as a patron saint for jurists, magistrates and judges as well.

He was known as ‘the Honest Lawyer’, (a surprising moniker, one must admit) so much that he is the subject of an amusing piece of doggerel found on his tomb in Tréguier Cathedral in Côtes-d’Armor, France, reads: Sanctus Ivo erat Brito Advocatus et non latro Res miranda populo (‘St. Ives was from the land of beef, A lawyer, and not a thief; A stretch on popular belief’).

The words of another Catholic saint of our period, Saint John Paul II highlight the greatness of Sant’Ivo:

“St Ivo was involved in defending the principles of justice and equity. He was careful to guarantee the fundamental rights of the person, respect for his primary and transcendent dignity, and the protection that the law must guarantee him. For all who exercise a legal profession, whose patron saint he is, he remains the voice of justice, which is ordained to reconciliation and peace in order to create new relations among individuals and communities and build a more impartial society. I give thanks for the shining example he offers to Christians today, and on a broader scale, to all people of good will, inviting them to walk on paths of justice, of respect for the law and of solidarity with the poor, to serve the truth and to take part in “a new “creativity’ in charity”.”

On this day, may all lawyers get the rest they deserve, and may they all follow the example of Sant’Ivo during the exercise of their profession.

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The idea of donating something merely constitutes an act of benevolence; whether you’re donating clothes to your local charity shop or a large sum of money to your children. This is, therefore what distinguishes the contract of donation from other contracts: the act of liberality — as opposed to the quid pro quo characteristic of other contract, such as the contract of sale; where the buyer is giving money to the seller in return for a specific property. In fact, Italian authors such as Giorgio Giorgi have explained that the act of liberality is incompatible with the notion of ‘payment’, because when one provides a payment, a return of something is expected: quid pro quo. Hence, the main purpose of a donation is to enrich the estate of the person receiving the donation, referred to as the donee.

The law on the contract of donation quickly sets out various formalities and conditions which must be respected. Generally, the law states, donations are only allowed inter vivos (ie., a transfer during a person’s lifetime) and are both irrevocable and gratuitous, should one accept the donation. This is all found under article 1737 of the Civil Code, which roots date back to the Roman Empire. In fact, one of the bodies of Roman Law (known as the Institutes of Justinian), drafted some 1,500 years ago and mainly based on a previous code of laws, established that donations are only allowed inter vivos, as donations causa mortis (therefore, a transfer after one’s death) are ‘legacies’, which is a mode of acquisition relating to the law of succession.

It further stated that should the object of the donation exceed five hundred solidi, then such transfer had to be registered in an official registry. Evidently, this mechanism is still very much in place nowadays. In this regard, article 1753 states that all donations must be made by a public deed, unless the “sum or value thereof is moderate, regard being had to the condition of the persons and to other circumstances”. Naturally, this would mean that a donation of an immovable property would have to be made by a public deed, as an immovable property’s value is not ‘moderate’. In fact, the law mentions “manual gifts of money or of other movable corporeal things, or documents to bearer” to this effect. Further to this, the law also exempts certain other instances such as the assignment or cancellation of debt, for one may also donate the remission of a debt.

As would most laws, there are various exceptions to the main rule, namely against the principle that a donation is (1) irrevocable and (2) gratuitous. Nonetheless, there are various instances dealt with by the law whereby they prove to be a valid exception to the irrevocability or gratuitous nature of a donation. However, the exceptions to the irrevocability of a donation have a higher threshold than the gratuitous nature — namely because if a donation is not gratuitous, then the law simply identifies that it may be onerous or remuneratory.

On the other hand, the irrevocability of a donation is dealt with by Sub-title III of the Civil Code’s Title XIV, entitled ‘Of the Exceptions to the Rule of Irrevocability of Donations’. In parallel to this, the Institutes of Justinian had eloquently stated that “once perfected (a donation) cannot be lightly revoked”. In fact, one of the grounds under the above-mentioned sub-title of the law also finds its roots in Roman Law, whereby article 1787 speaks of ‘Revocation for Ingratitude’. Similarly, the Institutes of Justinian stipulated that:

“It must be observed, however, that, even when gifts are quite complete, our constitution allows donors, if the donees prove ungrateful, to revoke them for certain specified reasons, lest otherwise their generosity should be an occasion of injury or loss”.

The present grounds for revoking a donation on the basis of ingratitude all, in fact, stem from the fact that there “should be an occasion of injury or loss”. Amongst the revocation for ingratitude, there also exist other grounds such a by virtue of a resolutive condition and in cases of endowments to organisations in instances where a foundation itself is revoked.

Evidently, the law of donation clearly identifies the strong presence of Roman Law in our laws, despite it being drafted well over a millennium and a half ago. Naturally, there have been certain legislative reforms which though merely reflect the societal requirements and modernisation, such as the now-abolished idea under the Institutes of Justinian that gifts (donations) between husband and wife were prohibited.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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The two and a half feet or the seventy-six-centimetre rule, (in Maltese parlance referred to as “ir-regola taż-żewġ piedi u nofs”), is imposed by article 439 of the Maltese Civil Code.

This article states that, “It shall not be lawful for any person to dig in his own tenement, any well, cistern or sink, or to make any other excavation for any purpose whatsoever at a distance of less than seventy-six centimetres from the party-wall.”

The importance of this article is huge when it comes to the development of adjacent property – when such development involves in any manner the digging or excavation works on an adjacent land. Time and again our courts have taken a rigid stance to protect the effects that this article imposes.

Digging within 76cm, from the dividing wall, is absolutely prohibited – no exceptions. The term digging, includes all excavation works (of any nature), such as trenching and unearthing of material. The material that stands (from surface downwards) within 76cm of the party must remain untouched. The moment one tries to meddle with this protected material, s/he falls foul of this rule.

The scope of this article is by and large the protection of the next-door tenement or property – it seeks to protect the underlying pediment and what surrounds it within the imposed legal distance.

Now, judgments have been consistent in the sense that they have declared the absoluteness of the prohibition that is set out in article 439. In this sense, the court has underlined the fact that there are absolutely no exceptions to this rule. By example, even if one had to satisfactory prove that excavation within the 76cm distance, would not be of prejudice to the adjacent tenement, such evidence would not antidote the absolute prohibition that is set out by the law.

As held in the judgment bearing the names A&N Properties Limited et vs. Charles Busuttil:

“Jidher ċar, mill-kliem tal-liġi, li l-projbizzjoni ta’ tħaffir f’bogħod ta’ anqas minn 76ċm mill-ħajt diviżorju hija jedd reali, stabbilit għall-vantaġġ ta’ fond ġa żviluppat fuq fond li għad irid jiġi żviluppat, sabiex sid dan tal-aħħar ma jitħalliex iħaffer fil-blat f’bogħod anqas mid-distanza msemmija (artikolu 400 (1) tal-Kap 16). Din il-projbizzjoni hija ġenerali (Micallef vs. Debono – P.A. – 25 ta’ Novembru, 1910); Giovanni Coleiro pro et noe vs. Domenico Camilleri et P.A. (WH) – 18 ta’ Frar, 1936) u assoluta (“Eric Fenech Pace et vs. Bajja Developments Limited” P.A. (TM) – 14 ta’ Ottubru, 2004); “Salvatore Grixti et vs. George Schembri” A.Ċ. – 12 ta’ Ġunju, 1969 – Vol. XLIII.ii.283), mingħajr ebda kwalifika jew eċċezzjoni, la għall-każ fejn il-blat fid-distanza msemmija jkun dgħajjef, lanqas għall-każ fejn tqattigħ f’dik id-distanza effettivament ma jikkaġuna ebda ħsarat jew danni lill-ġar.”

There are some judgments that stated otherwise, but the prevalent judgments have moved along these lines.

Judgments have declared that this article creates an easement “servitude” in favour of the adjacent tenement – this is a real right attached to the immovable property. Servitudes are rights attached to immovables; they crop up where tenements are literally being served by another – they are rights established to the advantage of a tenement over another tenement. Simply put, the land being developed is subject to this prohibition. This servitude is of character, because it is of a prohibitory nature.

Like other servitudes, this right can be renounced to – the mode of renunciation must necessarily be done through the means of a public deed. When it comes to renunciation of such rights, there has been some inconsistent judgments. Some court decisions, seem to have accepted that this right given to adjacent owners, may be renounced to implicitly/verbally or even though informal agreements such as a private writing. Other judgments have stressed that such right may only be renounced by virtue of a public deed – given its real right feature.

As held, the law seeks to protect the neighbouring tenement from damages by excavation works. Hence if the legal distance is breached, by law, any damages that are sustained by the adjacent tenement, are automatically presumed to have occurred by result of such breach. In such case, it would be up to the adjacent developer/owner to prove that such damage occurred was not the result of such excavation works.

In conclusion, breaching the two and a half feet rule means trouble to the perpetrator, unless one is authorised to so through the correct means. When this happens, respondents to such cases are by and large condemned to pay the resulting damages, to restore the land as it was before the excavation works/or alternatively to pay a compensatory amount to the adjacent owner.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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For one to make a development, one has to apply for a planning permit.

Planning applications are brought before the Planning Board, which is tasked by law (article 72(2) of Chapter 552 of the Laws of Malta – the Development Planning Act) to determine the merits by taking account of the plans submitted, the planning policies, regulations made under planning law and any other material consideration, including surrounding legal commitments, environmental, aesthetic and sanitary considerations, which may be relevant. The Planning Board shall also consider representations (known as ‘objections’) made by third parties, as well as the representations and recommendations made by board, committees and consultees so appointed in terms of the law.

On the other hand, the Planning Board is generally not required to verify the suitability of the title which the applicant purports to have, nor shall it consider issues which are ‘private’ between the parties. Indeed, the law states (article 72 (1), Chapter 552) that any development approved shall be without prejudice to third party rights and shall not in any manner constitute or be construed as a guarantee in favour of the applicant as to the title to the property. Therefore, theoretically speaking, an application may be one that satisfies all planning considerations and so the application is approved. But that does not mean that the applicant is free to initiate his development. Any rights belonging to third parties (for instance, the right not to have windows abutting onto one’s airspace) remain, and are not nullified by the issuance of the planning permit. A planning permit is not the beginning and the end of what is required for one to build. Any third party rights (either emanating out of contract or from the provisions of the Civil Code, among others) still need to be respected. So for instance, you will find many approved applications having apertures which are perfectly compliant with planning laws, but which create illegal servitudes unto third parties, and can thus be challenged in a court of law. Simply put, planning law takes account of planning issues, while third party rights are the exclusive competence of our courts.

This does not mean that an applicant may freely make misrepresentations as to his rights on a property. According to article 71 (4) of Chapter 552, an applicant shall – in his application – certify that: (i) he is the owner of the site or that he has notified the owner of his intention to apply, this by means of a registered letter, shall also certify that the owner has granted his consent to such a proposal; or that (ii) he is authorised to carry out such proposed development under any other law or through an agreement with the owner. So technically speaking, one is not required to be the owner to apply for a permit, as long as the owner has consented or as long as he is allowed by law to carry out such a development. This for instance allows prospective buyers on a promise of sale agreement to apply for a permit in their own name.

One however must not lie; a permit issued on the strength of an untruthful declaration may possibly be revoked through the procedure established in article 80 of Chapter 552 of the Laws of Malta.

This initial declaration of ownership/consent in the application is very important. Despite the fact that it has been stated time and time again that all planning permits shall be issued saving third party rights, this did not mean that the Planning Authority was free not to verify that consent was actually granted when the applicant was not the owner. Recently, in the judgment of Kingsway Palace Company Limited vs l-Awtoritá tal-Ippjanar et, the Court of Appeal described the duty of the Planning Authority in this respect:

Hu minnu illi kwistjonijiet ta’ kontestazzjoni fuq titolu mhux fil-kompitu tal-Awtorita jew it-Tribunal li jikkunsidrahom u jiggudikahom. Pero dan ma jfissirx illi fejn applicant qed jissottometti li ghandu permess tas-sid moghti permezz ta’ ftehim kontrattwali u ghalhekk mhux mehtieg il-kunsens tas-sid ghall-izvilupp dan ma ghandux jigi mistharreg u dan semplicement ghax hi l-ligi tal-ippjanar stess li taghti dan id-dritt lil applikant. It-Tribunal bhall-Awtorita ghandu l-obbligu li jqis din is-sottomissjoni.

Jekk prima facie jirrizulta dan il-jedd b’mod car u bla kondizzjonijiet jew limitazzjonijiet, allura l-Awtorita u t-Tribunal ghandhom l-obbligu li jiddeciedu l-applikazzjoni fuq ilmertu taghha mill-lat ta’ ippjanar. Wara kollox l-ghoti ta’ permess mhux garanzija ta’ dak li l-Awtorita u t-Tribunal qiesu bhala prova ta’ titolu fuq bazi prima facie biss. Li ma ghandux jaghmel it-Tribunal hu li jinterpreta jew iqis jew inkella jinjora kwistjonijiet ta’ natura civili li jitqajmu u li fuqhom hemm dizgwid bejn il-partijiet specjalment fejn hemm proceduri legali gia mehudin.”

Once the law made it a condition for the non-owner to seek consent from the owner, the Authority has to consider legal issues, at least from a prima facie perspective, to verify whether there is the required consent.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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