The purpose of titles at law exist because of the implication that emanate therefrom. For instance, when an individual enters into a promise of sale agreement for the purchase of a property, he or she is assigned the title of a purchaser. Apart from merely obtaining such title, that individual would thus start to (legally) benefit from the rights granted to a purchaser and, naturally, must also adhere to the obligations which any other purchaser must adhere to. Upon the successful purchase of such property, the purchaser becomes an owner and certain rights and obligations start to apply.
Significantly, when an individual becomes an owner of an apartment, he or she also becomes the co-owner of that which is common to the apartment block. Should that apartment block also have an association and a registered condominium, that co-owner also becomes a condominus.
Therefore, an owner of an apartment may exercise specific rights available to owners, co-owners or condomini; depending on the circumstances. This ultimately means that apart from the Maltese tradition of causing a scene in the common areas of the building, a co-owner may institute legal proceedings against another co-owner, or the association may institute such proceedings against an individual condominus.
In fact, the issue decided by the court in the recent partial judgment of ‘Malcolm Debono Pace et v Mark Borda et’ (delivered by the Civil Court, First Hall on November 23) (266/19TA) concerned whether the plaintiffs had locus standi (that is, the right to bring an action in court) to institute proceedings at all because of the title availed of by the plaintiffs in instituting the proceedings.
The primary issue of the case concerned a ‘ladies cleaning room’ situated right above the defendant’s penthouse. Prior to these proceedings, the defendant had occupied this room as his own property – blocking all access to the other co-owners/condomini of the apartment block. Because of this, the plaintiffs had instituted proceedings, asking the court to declare that this room was part of the common property (as indicated by their respective contracts of acquisition) and hence, both plaintiffs and defendants should have access to this room.
An owner of an apartment may exercise specific rights available to owners, co-owners or condomini, depending on the circumstances
The defendants naturally contested the claims brought forward by the plaintiffs. While not opposing certain rights which are due to the plaintiffs (such as their right of access to the roof in order to install water tanks and television aerials as well as the plaintiffs’ right in respect to the lift shaft), a particular plea gained prominence. It was stated that the action exercised by the plaintiffs in instituting these proceedings should not have any effect. This is because this particular action, the so-called actio petitoria, may only be exercised by co-owners; and since this particular matter concerned the common parts of a condominium, then the plaintiffs ought to exercise their rights as condomini, hence unable to exercise the actio petitoria.
The actio petitoria is, in fact, an umbrella term for a list of potent actions exercised by owners against possessors (yet another title with a plethora of implications at law). Predominantly, the action utilised by the plaintiffs is based on the premise postulated by article 322(1) of the Maltese Civil Code, which states that “save as otherwise provided by law, the owner of a thing has the right to recover it from any possessor”. This nonetheless seemed to be a convenient option for the plaintiffs in this case; whereby the defendant was merely the possessor of the room and hence, as co-owners of the common area, they brought forth this action.
The defendant, however, pointed out that article 17 of the Condominium Act indicates that: “In matters relating to the common parts of the condominium, the administrator has the representation of all the condomini and has also the judicial and legal capacity to sue the condomini or third parties and to be sued” – ergo, the plaintiffs do not have standing to institute proceedings as co-owners.
Based on these two conflicting remarks, the court admitted that this is indeed a particular issue which has never been dealt with by the courts. It is important to note that it is a general principle of law that laws which are specific (special) in nature are prioritised over laws which are general; lex specialis derogat generalis. By analogy, this would imply that the Condominium Act is prioritised over the Civil Code. However, the court opined that despite such principle, it is the general law which would apply in this case in virtue of safeguarding one’s right to ownership.
Furthermore, it stated that the rights of the condomini under the Condominium Act are indeed compatible with the rights of co-owners to exercise the action which the plaintiffs in this case had brought forth under the Civil Code. Therefore, it may now be argued that in the very limited instances (such as in this case) where the Condominium Act may limit the right to ownership, the condomini may avail themselves of the general provisions in the Civil Code which secures their right to (co-)ownership.
Logically, the court made an exception in applying the general law over the special law in order not to limit one’s right to ownership as protected by the European Convention on Human Rights as well as the Constitution of Malta. Since the right of ownership is evidently highly protected, rejecting the plaintiff’s claim in this regard would have given rise to a Constitutional application regarding a breach to one’s enjoyment of his or her property. On the basis thereof, the court rejected this plea made by the defendant and hence ordered the continuance of the case.
Keith Borg is a partner at Azzopardi, Borg & Abela Advocates.