The First Hall of the Civil Court, presided over by Mr Justice Lawrence Mintoff on October 14, 2015, in the case ‘Alexander Caruana Soler and others v Christopher Chircop and PL Doreen Aquilina as curators to represent the unknown co-owners’, ordered the sale of common property at the request of the majority of the co-owners, as the sale was reasonable in terms of article 495A Civil Code.

Alexander Caruana Soler, Edward Caruana Soler, Edwina Barthet, Maryanne Papagiorcopulo, Natalie Ferris and Robert Borg Busuttil, all children of the late Joseph Caruana Soler and their mother, filed an application in court to request the sale of a house at 18, Bridge Wharf Street, Marsa, which was owned in common with other persons.

Applicants together owned 13/24 of the property, and based their application on article 495A(1) Civil Code.

They said that they wished to sell the property for €170,000 to Federated Mills plc, and that the proceeds should be shared by all co-owners according to their share of the property. Applicants asked the court to: authorise the sale of the property in terms of article 495A Civil Code; to establish the time and place for the publication of the transfer; to appoint Notary Robert Muscat to publish the contract and to nominate curators in case some of the co-owners remained contumacious.

Christopher Chircop and legal procurator Doreen Aquilina were appointed to represent the unknown co-owners of the property.

In reply, the curators submitted that applicants had to prove and satisfy the court that their claims were founded. They also reserved the right to raise ulterior pleas. Notices appeared of their application in a local newspaper and in the Government Gazette.

Three other co-owners, Louis Cilia, Rita Agius and Joseph Giorgio, confirmed they had inherited a share of the property (1/12) under the testament of Giovanni Caruana dated November 7, 1938, and November 28, 1947. They declared that they did not oppose the sale of the property.

In its decree of June 18, 2015, the court ordered that applicants had to file a sworn statement in terms of article 495A Civil Code and confirm that they agreed with the sale of the property, state the share of each co-owner and the value of each share and maintain that, as far as they were aware, no co-owner had taken legal action to divide the property in question.

Alex Caruana Soler had to make a correction in his statement to confirm the percentage of their share in the property.

Architect John J. Papagiorcopulo and architect Alan Saliba should confirm on oath their valuations of the property, respectively €185,000 and €180,000.

The court also ordered that the persons mentioned in the two notes of Frank Cassar of April 6, 2015, and April 13, 2015, should confirm on oath their share and the value thereof in the property and that none of them opposed the sale of the property under the terms and conditions dated January 15, 2015.

The court considered that applicants’ requests were based on article 495A Civil Code, which allowed co-owners who held property in common for over 10 years to sell their property and not remain in a state of uncertainty and procrastination owing to the caprice and pique of the co-heirs who did not agree with the sale of the property.

The court felt that the price of the property as agreed was reasonable and reflected its true value

The period of 10 years started from when co-ownership was established. In this case, the property had been held in common as from June 30, 1996, when John Caruana had died. He had been the owner of the property and had bequeathed it to the applicants’ father, Joseph Edgar Caruana Soler.

Alex Caruana Soler confirmed on oath that in terms of article 495A(4) Chapter 16, according to the searches of notary Marco Burlò it was not possible to verify with certainty who exactly were the other co-owners of the property for the remaining 11/24.

It resulted that in terms of article 495(A)(3) Chapter 16 affidavits filed by Louis Cilia, Joseph Giorgio and Rita Agius confirmed that they were co-owners of the property (1/12) and that they did not oppose its sale in terms of the promise-of-sale agreement dated August 6, 2014 as amended by the agreement dated January 15, 2015.

The court noted that the applicants represented the majority of the co-owners of the property and together with the latter three co-owners had declared in terms of article 495A Civil Code that they did not wish to remain in common and agreed to the sale of the property at the price agreed in the promise-of-sale agreement. Applicants had further declared that none of the known co-owners had initiated legal action to sell the property in question.

It also resulted that on August 6, 2014, applicants had signed a promise-of-sale agreement with third parties to sell the property in question.

The final sale of the property, among other terms and conditions, was subject to the condition that the sellers would oblige themselves to immediately start court proceedings, at their sole charge and responsibility, requesting the court to authorise them or court-appointed curators to sell the remaining undivided share of 7/16 to the purchaser at the mentioned price of €170,000 for the whole.

After taking into consideration all relevant factors, article 495A Civil Code, as well as the valuations of the architects, the court felt that the price of the property as agreed under the promise-of-sale agreement dated August 6, 2014, as amended on January 15, 2015 and July 8, 2015 was reasonable, and reflected the true value of the property.

The court was of the opinion that the other, unknown, co-owners would not be prejudiced.

For these reasons, on October 14, 2015, the First Hall of the Civil Court accepted applicants’ requests in terms of article 495A Civil Code and authorised the sale of the property, subject to such conditions as stated in the promise-of-sale agreement dated August 6, 2014, as amended on January 15, 2015 and July 8, 2015, to be published by notary Muscat on October 15, 2015 at 10.30am at the law courts. Christopher Chircop was appointed curator on the deed of sale in the name of the co-owners who failed to appear for the publication of the contract. The costs were to be borne by all co-owners according to their share. The court ordered the sale proceeds belonging to the other co-owners to be put aside and to be kept by Chircop for eventual payment.

Chircop was ordered to deposit under the custody of the court, within one month from the date of the publication of the final act, the balance representing the share of the other co-owners from the price of the sale of the property.

Karl Grech Orr is a partner at Ganado Advocates.