Undoubtedly, everyone has heard the words easement, servitude or more likely, “servitu”, but what do they mean?

The Civil Code defines an easement (servitude) as a right established in favour of a property over another property belonging to another person, for the purpose of making use of that property. That could be a right of passage or restraining the owner from the free use of the property, such as where this involves a prohibition to build. The law categorises easements as continuous or discontinuous, and apparent or non-apparent.

This legal principle was studied by the First Hall of the Civil Court, in a judgment delivered on June 15, 2023 in the names Licari vs. Gusman.

The alleged owner of what we call the dominant tenement, i.e., the person making use of another person’s tenement, requested the court to declare and decide that she had the right of perpetual use and passage of the roof belonging to the defendant in the block of apartments in which plaintiff also resides. Use was limited to the installation and maintenance of plaintiff’s water tank, television aerial and dish antenna.

In this case, the defendant was the owner of the servient tenement, i.e., the property subject to the easement (‘servitu’).

The plaintiff had also requested the court to declare that the mentioned right of passage was to be exercised from the doorway and not the window leading to the roof,  as the defendant had not allowed the plaintiff to exercise her right of passage from the said doorway in the months prior to the lawsuit.

Easements are created in either of two ways

As a rule, easements are created in either of two ways: by Law or by act of man. In fact, in so far as easements are created by act of man, the Civil Code states that it shall be lawful for owners to establish any easement which is in no way contrary to public policy.

In the case at hand, the plaintiff had acquired an apartment by virtue of a deed of sale dated January 30, 1995. This deed, the conditions of which had been agreed upon by the parties, conceded in favour of plaintiff “id-dritt biss ta’ użu perpetwu tal-bejt fuq l-istess blokk, liema użu jkun limitat għal servizzi, ċioe` għal tankijiet tal-ilma, aerials tat-television, u dish antenna.” (the sole right for perpetual use of the roof overlying the block limitedly for services, i.e the water tanks, television aerials and dish antenna.)

In this judgment, the court categorised this easement as one which was discontinuous and non-apparent. For this and other easements of its kind, Article 469(1) of the Civil Code states they must be created by means of a valid title, and so cannot be obtained by prescription, i.e., by the passage of time.

On a separate note, the law requires that the title creating an easement results from a public deed, in the absence of which the title is null. Where the easement is created by a deed in one’s lifetime, the easement shall not be operative as regards third parties before the deed is registered in the Public Registry.

The First Hall of the Civil Court considered that:

“...sabiex din l-azzjoni tal-attriċi tirnexxi, jeħtiġilha tipprova li hija għandha l-jedd vantat minnha u ċioe` jedd t’użu u konsegwentement t’aċċess għal fuq il-bejt proprjeta` tal-konvenuti. Jekk l-attriċi jseħħilha turi tali jedd, sid il-bejt u ċioe` l-konvenuti Gusman ma jistgħu jagħmlu xejn li jnaqqas jew ixekkel tali servitu.” (For this action to succeed, the plaintiff needs to prove that it holds the right of use, and consequently, the right to access the roof of the property owned by the defendants. Should the defendants prove such a right, the owners of the roof, the defendants Gusman, may do nothing to restrict this easement.)

The court’s reasoning stemmed from the principle established in Article 474(1) of the Civil Code, that the owner of the servient tenement cannot do anything which diminishes the exercise of the easement or makes such an exercise more inconvenient. He may not alter the condition of the tenement, nor may he assign for the exercise of the easement any part of the tenement other than that over which it was originally established.

In the case at hand, the defendant had made plaintiff’s easement more burdensome, if not impossible, by changing the locks of the door leading to the roof of which the plaintiff had the right of use and passage.

Drifting away from the case at hand, the court referred to the judgment in the cause of Zarb et vs. Carabott et decided on 12 May 2006, in a generic attempt to define the use of one’s roof, i.e., “użu ta’ bejt”.

It also referred to the judgment in the names Grima vs. Atkins delivered on   July 6, 2007, wherein the court considered that the abovementioned definition must have a wide interpretation. In fact, it considered that “it-twaħħil tal-kanen u ħbula tal-inxir żgur jitqies bħala użu normali tal-bejt.” (The installation of washing lines should certainly be viewed as normal use of a roof.)

The court went a step further to state that “dment li l-użu jkun normali u raġjonevoli, u ma jtellifx lis-sidien l-oħra mit-tgawdija li huma jistgħu jagħmlu fuq il-bejt, dak l-użu għandu jitħalla.” (For as long as normal and reasonable use is made, such as that it does not hinder the other owners from the enjoyment of the roof, such use should be allowed).

Having said that, the generic interpretation given to this phrase could not have applied to the case at hand, given that the deed of sale signed between the parties specifically limited the plaintiff’s right of use over the defendant’s roof to “...servizzi, ċioe` għal tankijiet tal-ilma, aerials tat-television, u dish antenna.” (services, i.e water tanks, television aerials and dish antenna.)

The court delivered final judgment by accepting the plaintiff’s requests and rejecting the defendant’s pleas, with costs against the latter. The judgment is still subject to appeal.

 Dr Nicole Vassallo is a junior associate, Azzopardi, Borg and Associates.