A walk in the streets of our islands reveal numerous beautiful properties which look rundown, ostensibly having been abandoned by their owners. The truth is that many of these properties are owned by several owners who, at some point, found themselves at a standstill due to conflicting ideas as to what to do with their co-owned properties.

Take this initial premise as an example. Following the demise of your aunt Lucy seven years ago, you inherited an undivided share of a villa together with four of your siblings and a cousin who you have never met. 

Were it solely up to you, you would have definitely sold the property. Your cousin has been living far off in Canada all his life and had little motivation to keep in touch with his family and have had little interest in preserving his Maltese heritage.

All the other co-owners but your cousin want to sell, but there is no way for you to manage to reach out to your cousin living in the Great White North, let alone to convince him to sign off the sale.

You can just opt to sell the property without your cousin’s consent, then deposit his share in court, right? 

Wrong.

When co-owners are unknown, cannot be traced, or when they flat-out disagree with the sale of the property held in common, the co-owners who own the majority of the share of the property cannot just bypass the co-owners owning any minor share of the said property. 

Any co-owner, however small his share may be, has to give his consent to the sale – despite the strangely common misconception had by many that if the share is small, one just needs to deposit the co-owner’s share of profit in court. The signature of that 0.1 per cent share co-owner is as important as that of that owning 75 per cent of the property.

This does not mean that the dissenting co-owner can veto the proposed sale forever. 

The solution to this was provided by the introduction of article 495A of the Civil Code into our law back in 2004. This article of the law states that co-owners owning the major portion of property so co-owned may refer their intention to sell to the court which, in turn, has the power to authorise the sale of the co-owned property.

This is the correct procedure to undertake; there is absolutely no law that allows anyone, be it a co-owner, a lawyer or a notary, to simply deposit the dissenting co-owner’s money in court without prior authorisation given through a procedure under article 495A. 

There is no way one can legally proceed with the sale of the whole property without court intervention. In the case ‘Mary Ann Bugeja et v Avukat Dottor Joseph Grech noe’ decided by the Court of Magistrates (Gozo) in its superior jurisdiction on September 6, 2019, three siblings together owning three-quarters of a property in Nadur, brought a suit against their estranged brother, who owned the quarter and so happened to be living in the US.

A nominated curator does not necessarily need to know the person he is representing

The plaintiffs had entered into a promise of sale with a third party to sell the property so owned for the price of €235,000. They declared that they had made several attempts at contacting their brother (the defendant) to obtain his signature, all of which failed. And so, apart from solemnly confirming to the court that the other co-owner could not be found, the plaintiffs asked the court to authorise the sale as proposed and appoint a curator to represent the absent co-owner in the proceedings and to subsequently appear in the contract of sale in his stead.

This is a perfectly legitimate procedure.

Our law provides for a solution if a party to a case is considered to be ‘absent’. That person’s void is filled by someone else, appointed to represent his interests in his absence − this person is known as the curator.

The procedure to appoint curators is very methodical. 

Curators are only appointed after notice of the request (known as ‘the banns’) is posted up at the entrance of the building in which the court sits, and a copy of the banns together with a copy of the pleading or a summary thereof is served on one of the persons most closely related to the person to be represented or his friend. If no relative or friend is known, then the banns need to be published in the Government Gazette and in at least two daily newspapers.

If within six days, no person appears to represent the absent person, then the court will appoint an advocate and a legal procurator to appear as curators.

This way, the law ensures that the absent person’s position is well taken care of.

A nominated curator does not necessarily need to know the person he is representing, although he is responsible at law to try to get in touch with him.

However, at times, circumstances make it impossible for a curator to reach the person he is representing. In such situations, the curator states whether he has managed to contact the person being represented in the proceedings and also furnish the court with the facts he becomes aware of.

This was the situation in this case; the curator appointed to represent the brother living the US did not manage to contact his representee and, therefore, could not present any objections on his behalf. 

This notwithstanding, the court still entered into the merits of the case and noted that the plaintiffs were proposing a sale to a third party for a price which an architect had deemed to be proper and justifiable given the size, location and current trend in the property market. Therefore, the absent brother’s interests were to be properly safeguarded and his share of the profit would be later deposited in court for the brother to withdraw.

The court, therefore, acceded to the request, authorised the sale and appointed the curator to also appear on behalf of the absent brother in the final deed of sale.

Rebecca Mercieca is a junior associate at  Azzopardi, Borg & Abela Advocates.