Do you live in a condominium?

The term condominium has been introduced to the Maltese legal jargon after the introduction of the Condominium Act.

Before the advent of this act, this term may have been associated to high rise buildings or other groups of buildings built on common terrain.

Since the introduction of the condominium act, this term is of great importance especially when one notes the rights and obligations this act introduces.

Definition

Section 2 of the Act provides that:

"Condominium is a building or group of buildings where the ownership or the use or the enjoyment of the common parts thereof is vested pro indiviso in two or more persons and the ownership of the various separate units in the building or group of buildings is vested pro diviso in the same two or more persons:

Provided that two or more tenements one or more of which overlies another and where there only exists a number of servitudes of the tenements over each other, and only the drains or the drainage system or other piped or cabled services are owned in common or where two or more tenements only have a common outer staircase or common outer landings, shall not be considered to be a condominium. "

This definition may be an explanation why the law is being introduced. All buildings which contain units that are owned pro diviso, and contemporaneously have areas that are owned pro indiviso shall be regulated by this act particularly the administration of the parts owned pro indiviso within the building.

The act was introduced to regulate the inter-relationship between the various owners present in any building that is made up of units that are separately owned and common areas that are owned and or enjoyed in common with the other owners of the separate units within the same building.

Co-ownership and the condominium

Prior to the introduction of this act, common areas were regulated by the provisions laid down in the Civil Code.1

These provisions have proved to be insufficient and inadequate especially when one considers that the provisions of the Civil Code on co-ownership extensively regulate the dissolution of the state of co-ownership rather than regulate the administration of the property owned in common.

A fundamental distinction between co-ownership and the Condominium Act is that the Civil Code provides that:

"No person can be compelled to remain in the community of property with others, and each of the co-owners may, at anytime notwithstanding any agreement to the contrary, demand a partition."2

On the other hand the Act provides that: "No portion of the common rights may be divided or disposed of without the consent of all the condomini."3

Furthermore the Act provides that:

"A condominus cannot dispose of his rights in the common parts separately from his rights in the parts held separately pro diviso."4

One must further point out that the notion of co-ownership is intended so that one understands what title each owner of the individual units will have in the common parts for the act provides that:

"The provisions of Title V of Book Second of the Civil Code shall not apply to property held pro indiviso in the common parts of the condominium."5

Is a condominium of two units possible?

This question arises since Italian legislation presupposes that the condominium is made up of a plurality of condomini that is made up of more than two persons. In fact it is pointed out that the law is based on the maxim tres non duo faciunt collegium. In fact, it is not be possible to have a validly constituted assembly unless there are at least three condomini. Furthermore, there can be no simple or qualified majority according to the criteria established by the law.

This thesis was upheld by the Court of Cassation6 where by the Court has held that in such a case the law would refer us to the provisions of co-ownership and the provisions on condominia would not be applicable.

Thus, this report did not contain a limitation with regards to the number of floors or apartments or units within the building. Furthermore, the law does states that in the case when there are four or more units, an assembly will be established, yet makes no exclusion for cases when, for example, the building would be made up of only two units.

In the case of Maltese law, one may note that the definition of condominium does not mention any number of units that must form part of a block so that the block may be considered as a condominium.

The two elements that are indicated by the law as being the constitutive elements of a condominium are the ownership pro diviso of individual units and the ownership pro indiviso of the common parts. Thus, in the case that these two criteria are satisfied within a block, that block is a condominium.

The garage complexes

The definition given in section 2 of the Act leads to an important question whether garages underlying a condominium are part of the condominium or possibly form a separate condominium from the one overlying them.

The parking facility may take two particular forms: either the developer in an underlying space, normally at basement level, grants parking bays or else, the owners will have a garage space that is an exclusive space which is completely separate from the other spaces.

One must identify the title that is given to the owners of the garages with regards to the common parts that lead to the individual garages. It is a known fact that usually, the garages are built around a drive way, which drive way gives access to the individual garages.

Furthermore, the driveway may have lighting and requires to be maintained and cleaned on a regular basis for the benefit of all the owners. The driveway is a part that is necessary for all the enjoyment of the garages and thus in a garage complex there are parts owed pro diviso and parts owned pro indiviso, thus, a condominium will definitely arise.

One must further analyse whether the condominium of garages is part of the overlying condominium or a separate one.

The importance of this question is the:

1) The condomini would also own common parts in areas wherein they would not necessarily own any further property;

2) The share of ownership would be divided by more co-owners;

3) The expenses would cover more parts and divided by more persons;

4) There would be a case when there is one or two administrator or one or two assemblies.

One may tend to favour the explanation that the garage complex is a separate condominium, since the object of co-owning parts of a building indivisibly and by a forceful nature is for the purpose of enhancing the enjoyment of each co-owner's separate parts.

Thus, if the underlying garages may be owned by persons who are not necessarily owners of units within the condominium overlying the garages one would tend to state that a separate condominium is formed.

Overlying tenements

Section 2 contains an important proviso in relation to overlying properties. The legislator opted to exclude completely all overlying tenements which have a number of servitudes over each other and only the drains are owned in common.

This description forwarded by the legislator shows that in the case of tenements popularly known as "terran u mezzanin", the relationship between the owners of the two tenements is not regulated by this Act. In this case, the provisions of co-ownership and servitudes apply in the regulation of the relationship the owners should have between them.

In this case the law refers to instances wherein the overlying properties only have a number of servitudes over each other, and only the drains or drainage system are owned in common. In this case, the properties shall not be considered to form a condominium. It is only in the case that there is an element of ownership pro diviso and ownership pro indiviso, then in such a case, the properties would be considered to be a condominium.

One must note that the proviso in section 2 was widened as a result of Act 16 of 2001. One may state that the new definition has slightly clarified the lacuna that may have been caused by the original proviso.

Other limitations

There are instances where buildings shall be considered as condominia in accordance to the definition adopted by the act yet, section 31 limits the applicability of the act to a number of provisions.

In the case that the following conditions subsist in a condominium after the coming into effect of the Act regulating condominia, only sections 2, 4, 5, 6, and 10 of the Act are applicable.

1. The condominium existed prior to the coming into force of the Housing Laws Amendment Act7; and

2. One or more separate units in the condominium were subject to a lease or a temporary emphyteusis of a period of 21 years or less, but does not include an emphyteusis of 21 years or less yet is extendable to more than 21 years.8

The law provides for two possible ways in which the provisions related to condominia may come into effect in such cases namely:

l. the lease or emphyteusis is terminated, or

2. the lessee and the lessor or the landlord and emphyteuta make appear on a public deed which regulates their relationship otherwise. In the case the agreement is entered into after June 1, 1995, yet prior to the coming into force of the Act on Condominia, it need not be a public deed but a private writing.

This provision applies in cases when an apartment or a number of apartments are leased or are subject to an emphyteutical grant and are subject to the special rent laws.

In the case the Act is applicable only with regard to the definition as per section 2, the presumption of co-ownership in the common parts as per section 5, the rights of the condomini as per section 6, and the obligation on the condomini not to carry out works that cause damage to the common parts as per section 10. It is noted that section 4 will also be applicable.

Thus, one may refer to the provisions of co-ownership with regards to the common parts held pro indiviso.

In such a situation, the law would thus have a lacuna since the administration of the common parts is not regulated in any manner whatsoever, since the Act will be partially applicable and reference to the co-ownership provisions cannot be made. Once the Condominium Act will come into force, the administration of the common parts will be a more problematic issue in this case so as long as the landlord and lessees or emphyteuta do not agree otherwise on the matter.

In cases when separate units within the condominium are subject to a lease or an emphyteusis which were contracted after the coming into force of the Housing Laws Amendment Act, 1995, the provisions of the Act shall be applicable to the condominium, unless the conditions listed in section 31(3) subsist.

The rights and obligations of a condominus shall be incumbent on and be exercisable by the lessor and the tenant or the dominus, unless it is not otherwise agreed by the dominus and the emphyteuta or the lessor and the lessee by a public deed.

If the agreement, referred to earlier, is entered into prior the coming into force of the Housing Laws Amendment Act, 1995 and the coming into force of the Condominium Act, such an agreement is still valid if it made by means of a private writing.9

This provision applies in cases when an apartment or a number of apartments are leased or are subject to an emphyteutical grant and are subject to the special rent laws. In the case the Act is applicable only with regards to the definition as per section 2, the presumption of co-ownership in the common parts as per section 5, the rights of the condomini as per section 6, and the obligation on the condomini not to carry out works that cause damage to the common parts as per section 10.

It is noted that section 4 will also be applicable. Thus, one may refer to the provisions of co-ownership with regards to the common parts held pro indiviso.

In such a situation, the law would thus have a lacuna since the administration of the common parts is not regulated in any manner whatsoever, since the Act will be partially applicable and reference to the co-ownership provisions cannot be made.

Once the Condominium Act will come into force, the administration of the common parts will be a more problematic issue in this case so long as the landlord and lessees or emphyteuta do not agree otherwise on the matter.

In cases where separate units within the condomium are subject to a lease or an emphyteusis which were contracted after the coming into force of the Housing Laws Amendment Act, 1995, the provisions of the Act will be applicable to the condominium, unless the conditions listed in section 31 (3) subsist.

The rights and obligations of a condominus shall be incumbent on and be exercisable by the lessor and the tenant or the dominus, unless it is not otherwise agreed by the dominus and the emphyteuta or the lessor and the lessee by a public deed.

If the agreement referred to earlier is entered into prior the coming into force of the Housing Laws Amendment Act 1995 and the coming into force of the Condominium Act, such an agreement is still valid if it is made by means of a private writing.10

The Act, after coming into force, will not be applicable to condominia that have separate units that are property of the Government of Malta. It is only by means of an Order of the minister responsible for housing that the Act may have its applicability extended to such buildings. The Order may contain a set of sui generis rules that will regulate the relationship between the tenants in the condominium and the Government who is this case would be the owner.11

Section 31 (6), in its proviso, expressly stipulates that the minister is not authorised to make an Order that has the effect of amending any of the provisions of the Act. Thus, one may state that the sui generis relationship that may arise following an Order by the minister responsible for housing may not be contrary to the provisions of the Act.

The Condominium Act is categorising types of buildings within a particular group which group of buildings shall be administered in accordance to this Act.

References

1. Sec. 489 et seq. Chapter 16, Laws of Malta
2. Section 496 (1) Chapter 16, Laws of Malta
3. Section 7 Condominium Act
4. Section 6 (3) Condominium Act
5. Section 4 Condominium Act
6. Cass. 26.05.1993, n. 5914
7. Section 1 of Act XXXI of 1995 provides that: "The Act may be cited as the Housing Laws Amendment Act 1995, and shall be deemed to have come into force on June 1, 1995."
8. Section 31 (3) Condominium Act
9. Section 31 (3) proviso Condominium Act
10. Section 31 (5) Condominium Act
11. Section 31 (6) of the Condominium Act.