Airspaces situated in common units are a potential nightmare to the respective unit users. Airspace in these circumstances is comparable to common property – property that is shared or used between a multiple of individuals.
Such common feature is likely to seed conflict between its users. Indeed, and resultantly, the law (which is also an expression of human behaviour) favours division or alienation of the property being owned in common. Here one can perhaps make reference to the notable 495A of the Civil Code, which action may be sought to sell the common property, even in cases where the sale is opposed to by one or several co-owners who do not hold the majority of shares.
Questions with regards to the ownership of airspace and rights arising therefrom have been brought before our courts time and time again. By example, let us presume that a ground floor tenement has an internal yard or shaft, the major question that arises is: who owns the airspace above that yard or shaft? Are owners of overlying apartments entitled to any rights in connection to the adjoining airspace? This is not to mention the question of servitudes (the legal jargon is ‘easements’) between the overlying and the underlying tenements.
Servitudes are another never-ending variance that predominantly feature in litigious suites when the airspace is being battled on. Servitudes are rights attached to immovables; essentially where tenements are literally being served by another – they are rights established to the advantage of a tenement over another tenement. Really and truly, the owner of the tenement which acquires such right may use the other tenement for the purposes of exercising the same acquired rights. By example, such as the opening of apertures abutting into the internal airspace.
Indeed, servitudes are the result of commodities, which have further troubled the legal thought on airspace rights. The question about where to place an air-conditioning unit, flushing apparatus, geysers and other relative household appliances or their servicing cables or drains – i.e. whether these can be transmitted through or placed in the common airspace − has featured regularly before our courts. These latter scenarios were the crux of the matter in the case Rudi Carbonaro et v Samuel Spiteri et, decided by the Civil Court, First Hall, on October 15.
Whoever owns the land is the owner of the air overlapping such land ‒ the ownership extends vertically up to the sky
In a nutshell, the plaintiffs were the owners of a ground floor tenement, which included an internal yard. According, to them, they also owned the yard’s overlying airspace.
The defendants – owners of the overlying tenements − installed a number of AC units, together with geysers and flushing apparatus, in the yard’s overlying airspace. The claimants demanded the removal of the installed appliances by instituting the legal action known as the actio negatoria servitutis. By virtue of this legal action, the claimants demanded a judicial declaration which confirms that their property ought not serve another property. Note that this action may only be instituted by the owners against the other owners – tenants or other possessors may not feature in such judicial actions.
On the other hand, the defendants argued that they had every right to install such appliances because the yard was intended to service the overlying apartments. The basis of these disputes are always the respective contracts of purchases – these should determine the respective rights that were acquired by the different owners, even when it comes to the position of servitudes.
The defendants submitted that the claimants’ contract of purchase had, in fact, subjected their property to all existing active or passive servitudes that emanated by result of the building’s physical position. By effect, they claimed that they had every right to install such devices. In essence they pleaded that, in terms of the contracts of purchases, their property enjoyed the perpetual right of use of all the common parts of the block of apartments which were intended for the common use, including also the right to use the internal open space of the complex.
Back to the concept of the airspace – by law, and in terms of article 323 of the Civil Code, whosoever owns the land owns also the space above it and whatever exists in that airspace or under such land. The claimants merely rested their claim on this principle. On the other hand, the respondents armoured themselves with their right to use the internal open space, in terms of the contract of purchase.
The court upheld the claimant’s claims, arguing that such right of use did not extend to the right to place air-conditioning units or the other installed appliances. It noted that the defendants’ property only enjoyed those rights which existed at construction stage, such as the passing of cables or drainage system, through the plaintiff’s airspace, or the existing windows which abutted in the same said airspace. Conversely, the defendants were not entitled to add on further servitudes (such as by installing aircon units) on the airspace without the explicit consent of the ground- floor owners.
The court referred to several previous judgments on the same matter and highlighted the following important principles, always in connection to the issues of internal airspaces in building complexes.
Whoever owns the land is the owner of the air overlapping such land – the ownership extends vertically up to the sky, in terms of the Roman Law principle ‘usquae ad coelum’. What is already being served may continue to be served but new services require the consent of the land owner. The development of the airspace must take place in such a way that there is no invasion or introspection of air and the property of the ground- floor neighbour; in this sense that the owner of the overlying tenement (in the absence of the ground-floor owner’s consent) is even prohibited from hanging out his clothes in the said airspace.
In this light, the court declared that the servitude to install aircon units or other appliances had to be specifically provided for in the contract of purchases – failing this, specific reference defendants had no right to install such devices. Consequently, the court, ordered the removal of the installed appliances at defendant’s expense.
Mary Rose Micallef is a junior associate at Azzopardi, Borg & Abela Advocates.