The 17th century legend of the notorious Peeping Tom is known to many, especially in the locality of Coventry, UK. It speaks of an English noblewoman, Lady Godiva, who rode naked on the streets of Coventry, covered only by her hair, while commanding all persons to keep within doors and from their windows, on pain of death. One man – Tom – could not resist peeping, earning himself not only the ultimate punishment of death (some historians say that he was merely struck blind), but also an eternal moniker that would become part of popular culture and survive well into the 21st century.

Privacy and property have for long enjoyed a somewhat symbiotic relationship. Protection of property rights is even constitutionally recognised – both locally and abroad – as a significant safeguard against intrusions of the privacy interests of owners from acts by the government.

Maltese property law also provides for a myriad rules against the intrusion of proprietary privacy by private actors. Most notably, the mere interference with someone’s property or possession in the exercise of a pretended right is a crime, punishable with imprisonment for a term from one to three months.

Our law does not deal with modern priers with blinding – and certainly not death. But it does provide objective measures in favour of one’s privacy, and this through a concept known to lawyers as ‘praedial easements’ or ‘servitudes’.

In reality, most legal easements take the character of building regulations. They regulate and limit the rights of a tenement over another. Where the owners of both tenements agree, there is not much to be said. But when they do not, one has to look into the provisions of the Civil Code to find the solution.

The case of Alan Abdilla et vs Wayne McKay (decided on May 23, 556/2019LM) specifically dealt with this issue. The respondent owned a property overlying that belonging to the applicants. He wanted to develop his property further and sought the Planning Authority’s approval to construct further floors and to open up new windows, balconies and other apertures, among them ones opening directly onto the plaintiff’s parapet, internal yard, and backyard.

The applicants requested that the court orders an injunction by virtue of which the respondent would be prohibited from proceeding with the construction work, at least until the matter was fully decided in a lawsuit to follow.

Most legal easements take the character of building regulations

They lamented that the respondent wanted to create further illegal servitudes on their property. They quoted two judgments of our courts, both stating that the owner of a land is considered to be the owner of the airspace above it (cuius est solum, eius est usque ad coelum et ad inferos,  Latin for “whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell”). Their argument was that the opening of additional apertures overlooking and in turn invading their airspace would be prejudicial to their proprietary rights, as well as to their privacy.

Simply put, the applicants’ complaint was that the apertures planned would be such as to create an illegal ‘right of prospect’. They referred to the general principal at law which prohibits the making of windows that may interfere with the neighbours’ privacy. In other words, in a sense, applicants’ argument was that the windows proposed would serve the owner of the overlying property to ‘pry’ directly onto the underlying property, and therefore, into the applicants’ airspace. In essence, the applicants’ complaint referred to an alleged invasion of airspace in three parts of their property: the parapet, the backyard and the internal yard.

There is no doubt that the respondent had no interest in the plaintiff’s private lives, nor did he intend to pry into their backyard. If anything, he simply wanted to use his property to its full potential. But this hardly mattered, at least not for the purpose of the law.

The parapet

In dealing with the parapet, the court observed that article 426 of the Civil Code provided for a remarkable exception to the general rule. It allows for the opening of a balcony, window, door or other opening in the external wall, provided that the stability of such wall is not affected thereby. The law is very clear that this right is only reserved for the external wall leading to the street, and not for any other wall. It considered, therefore, that the applicants could not prohibit the respondent from opening new apertures on the facade, if works were done in line with the planning permit and with utmost respect to the structural stability of the building.

The backyard

The respondent’s argument was that his property already had a right of prospect onto the applicants’ property and therefore, the development would not exacerbate the situation.

The court disagreed; it stated that even if the respondent did enjoy an original praedial right over the applicants’ property, it did not mean that he could open additional windows onto the applicants’ airspace. If the respondent insisted on opening apertures in the overlying development, he could simply change his plans, and withdraw his building in a way that his new apertures would be overlooking his own airspace, and not the applicants’.

The internal yard

Likewise, the court stated that the opening of new apertures could not be allowed, as they would be creating additional and aggravated servitudes which could cause harm to the applicants, including through an invasion of their privacy – which was protected at law.

In conclusion, the court ordered the issuance of a prohibitory injunction against the respondent, limitedly however to any part of the development proposed that was to affect the backyard and the internal yard, but not in respect of the parapet.

Carlos Bugeja is senior associate at Azzoppardi, Borg & Abela Advocates.