12 October, 2006

In December 1979, the defendant bought a plot in Bugibba upon which he constructed a block of flats consisting of three storeys: ground, first and second floors. In January 1981 the defendant sold a flat on the second floor transferred “with the community of all parts common with the other flats of the same block, including the roofs, free and unencumbered”.

In the contract, the defendant seller “retains the right to build further storey or storeys over the existing roofs, but he binds himself always to provide a common roof on top and access to the roof as exists at present and of the same kind”.

The same flat was resold in May 1989. Until then, in the centre of the block lay common stairs that led to the roof where there was a room. The plaintiffs were the new owners. The defendant constructed a penthouse considerably reducing the space on the roof. When the plaintiffs bought the apartment, they acquired, together with others, inter alia, the roof of the block and this hence translated into their right of use of the said roof as it was at the time of the transfer.

The plaintiffs alleged that the defendant’s behaviour was flagrantly illegal and breached their property rights.

They requested the Court to:

•Order and condemn the defendant to, in a short and peremptory time:

remove the construction on the roof or

provide an adequate means to allow access to the roof in a way that it would have the same space and character as the one existing at the time of purchase.

• Issue a warrant in factum against the defendant should the latter fail to rectify his position within a fixed period.

The defendant claimed that the plaintiffs lost their right to make a claim by virtue of Article 534 of the Civil Code.

The Court observed that the roof and airspace were not the defendant’s exclusive property. When he sold the flats, although he alleged that his intention was to concede to buyers the right of use of the roof, while maintaining ownership himself, this was not reflected in the contracts of sale, where the flats were sold with an indivisible share of the common parts, including the roof.

It is a basic legal principle that real rights are derived from public deeds and may not arise from intentions or verbal agreements.

The fact that the defendant retained the right to build on the existing ceilings did not mean that the ceilings remained exclusively his. A person may retain rights over property being sold as long as such rights, if over immovable property, result from a public deed.

Hence, while ownership of the roof belonged indivisibly to the flat owners, the defendant retained the right to build more flats and the co-ownership of the flat owners of the roof would be transposed to the “new” roof, ie the top of the new apartments. Seemingly, this was the intention of the parties to the contract.

A permit was issued allowing the defendant to build two apartments on one storey and a penthouse on top.

Work began early in 1993. The defendant was about to enclose the penthouse when he was interrupted by a warrant of prohibitory injunction issued at the request of the flat owners, who realised that the last floor was to be a penthouse reducing the use of the common roof.

The roof of a penthouse cannot be used like the roof of a normal block of flats which could be accessible from a flight of stairs and used for tanks, aerials, the hanging of clothes and the construction of washrooms.

The building of a washroom would be impossible and it would probably not be permitted to build an outer upper roof boundary wall (opra morta) of the dimensions prescribed by law.

Although today one can provide access to the roof of a penthouse, this must be done “by non-solid construction means” and through a hatch instead of a door. The Court claimed that this use was definitely not contemplated for the housewife. This access would not be “as exists at present and of the same kind” as the defendant bound himself to leave.

Although the defendant extended the roof upon the ceiling of the balconies of the new apartments, the airspace accessible to the plaintiffs as co-owners was reduced to 24.6 square metres (about 24.9 per cent of what was accessible before). Moreover, this roof now had to cater for double the number of apartments!

Clearly, with the construction of the penthouse, the defendant

• appropriated a greater part of the roof;

• reduced the accessibility of the owners and did not provide an alternative.

Admittedly, the defendant retained the right to build further apartments. However, this was limited by the right reserved the to plaintiffs to have the ownership and use of the roof as it was before.

The fact that plaintiffs did not contest the construction made no difference. When defendant decided to build more apartments, he only spoke of the construction of a new storey/storeys. Since this fell within the description of the reservation made by defendant in the contract, plaintiffs could not object.

The defendant’s claim for prescription under Article 534 was unfounded – this was not a possessory action. The plaintiffs merely claimed real rights acquired by virtue of a contract in May, 1989. In any case, the defendant did not prove that the case was filed after the lapse of one year from the construction of the penthouse.

The Court ordered the demolition of the penthouse on the 4th floor within 60 days of the date of this judgement. This judgement may be the subject of an appeal.