The remedy of a forceful sale of a property co-owned by persons who disagree with their property’s fate as provided for by article Article 495A of the Civil Code is not new to this series. Today’s article delves into further actions available to co-owners who feel that such judgments in favour of major co-owners impinge on their right to property.

Most co-owners in cases like the one discussed here end up in a state of co-ownership through inheritance. In a judgment delivered on February 1 (Ref 349/15/1 RGM), the Court of Appeal stated that there is no doubt that such a law had been promulgated specifically to address and target situations relating to properties owned by co-owners who disagree about the fate of their property and who wish to terminate their state of co-ownership. 

On July 15, 2021, the First Hall of the Civil Court decided in favour of the sale as desired by the plaintiffs, who owned six undivided parts of seven properties in Marsascala which they had inherited, and thus co-owned. The defendant, who owned the remaining one part of the seven of the undivided share, opposed the sale, stating that it had been her parents’ wish that the properties remain in the family. The plaintiffs declared that they had been in a state of co-ownership for more than 10 years and were willing to sell the property for €1,050,000 to an interested buyer, however, the defendant had not appeared for the promise of sale back in 2016.

The defendant claimed that the parties were still undergoing procedures regarding the division of their inheritance and that the parties were still in the process of attempting to find an amicable solution to dividing their property. It transpired that only a private writing had been agreed to by the parties several years prior, and no public deed had been finalised between them, thus no division could be considered to have been legally finalised. The minority co-owner further claimed that she was not aware that the other co-owners had been attempting to sell the property and had she known, she would have offered an additional €10,000 than the agreed price in order to keep it herself.

In a judgment delivered in 2021, the first court declared that the plaintiffs, being the major co-owners, satisfied the requisites of the law and subsequently ordered the sale of the properties in question. The defendant appealed, yet the judgment was also confirmed on appeal.

The Court of Appeal found that the request for a constitutional reference made by the minority co-owner was frivolous and vexatious in the circumstances

The minority co-owner in this case went a step further and filed an application on January 6, 2022, whereby she sought a constitutional reference based on her argument that the forced sale of her share of the properties amounted to the illegitimate taking of property which was not necessary in a democratic society. The Court of Appeal disagreed. In its deliberations, the court stated that it is not legally required for each sale of property which is concluded by virtue of the procedures as in this case to serve the general public.

She subsequently claimed that she had suffered a violation of her fundamental right to property and that such a judgment ordering for the sale to be finalised was not in the public interest, and just in the private economical interest.

She argued that by such a forceful sale, the minority co-owner would be unjustly denied her own property and such would prejudice her legitimate expectation to her share as agreed to in the private writing.

The rest of the co-owners successfully argued that Article 37 of the constitution regulating the protection from deprivation of property without compensation was only applicable in cases when there was the forceful taking of property without payment of fair compensation. This did not apply in this case since fair compensation was offered to the minor co-owner.

The court considered that the defendant’s request for a constitutional reference was frivolous whereby she claimed that the first court did not consider that the sale of the property would cause her grave prejudice. It was observed that she did not complain that this procedure did not reach the required proportionality between the interests of all the co-owners, including her own as a minority co-owner. The defendant was also receiving adequate compensation her share of the property, thus no prejudice existed.

The Court of Appeal further observed that the minority co-owner had not resorted to the ordinary remedies available to her by law to enforce the private agreement and seek the enforcement of the same which they had voluntarily signed, and so this was not a constitutional issue which the state was due to respond to.

Based on the reasoning above, the Court of Appeal found that the request for a constitutional reference made by the minority co-owner was frivolous and vexatious in the circumstances, and so dismissed it with expenses against her.

The sale will finally take place, whether the minority co-owner shows up on the date set for the final deed of sale or not.

Rebecca Mercieca is an associate, Azzopardi, Borg & Associates Advocates.