Residential buildings and regulations and legal principles on property development have always had a tense relationship with one another.
In recent years, property-related cases in court have become commonplace. They cover various issues including alleged infringements of the Civil Code, the Development Planning Act, and other ancillary pieces of legislation. Such cases are commonly instituted by aggrieved neighbours, seeking to dislodge property developments or be compensated for their troubles.
In the case Aronne Laferla et vs Matthew Mifsud, the Appeals Court on October 3 assessed several aspects of property law. More specifically, the case dealt with aspects pertaining to the tentative balancing act between the law regulating the development of property windows and the rights of neighbours.
The plaintiffs alleged that a structure built by the defendants did not abide by the applicable regulations concerning legal distances to be kept from their own property, particularly the distance between a new column and one of their windows.
Additionally, the plaintiffs alleged that the new structure was causing them inconvenience, given the extra weight their property had to endure as a result of the construction.
On the other hand, the defendant affirmed that he had acted according to the respective permit and building regulations.
The Civil Court, First Hall, whilst agreeing that the defendant had indeed built into the airspace of the plaintiffs, did not agree with the plaintiffs’ plea that the distance between their window and the defendant’s construction had not been respected. Consequently, both appealed the decision.
When dealing with the matter regarding the distance between the wall dividing the two properties (the dividing wall, or ‘ħajt diviżorju’), the Court of Appeal began by stating that anyone could develop his property as he saw fit, provided that it did not cause damage to third parties. In light of this, the court noted that the Civil Code provided that no person was allowed to dig a well, cistern, or any other excavation within their own property closer than 76 centimetres from the dividing wall.
As a result of architects’ testimonies, it was shown that the defendant did not comply with the 76-centimetre rule. Once this rule was not observed, the Court of Appeal overturned the First Hall’s ruling and consequently accepted the plaintiffs’ appeal, awarding plaintiff €5,000 in compensation.
The Court of Appeal’s decision underlined a number of key points. Whilst the First Hall ultimately agreed with the plaintiffs regarding the defendant’s construction having a detrimental and diminishing effect on their property, the Court of Appeal further enhanced this by providing remuneration.
The judgment in particular stated that one should not break a clear legal rule and expect to get away with it at his neighbour’s expense, which was part of the court’s motivation in awarding compensation. It also subscribed to the rule that one should not expect his neighbour to suffer the consequences of his unlawful construction projects. Moreover, it highlighted the importance of the balancing exercise needed between the notion of property development and the need for neighbours rights to be safeguarded as a result.
This judgement is final and cannot be appealed further.
Dr Arthur Azzopardi, is managing partner, and Liam Borg, paralegal at at AB&A Advocates.