This case is interesting because it shows the procedure followed upon the inheritance of a property that proves to be indivisible, or rather, divisible yet not conveniently so.

Joseph Baldacchino, the parties’ father, passed away in 1975 while their mother, Maria Dolores Baldacchino died in 1998. The deceased couple had drawn up a will unica carta in 1974 by virtue of which, their four children were nominated as heirs. After her husband’s death, Maria Dolores Baldacchino made a will in 1988, once again nominating her four children as equal heirs except for a pre-legacy. The plaintiffs made a request so as to divide, where possible, the assets inherited from both their parents and to put the indivisible assets up for sale by licitation. They also requested that the pre-legacy be put in possession of the legatee. (The testator may leave a pre-legacy to his heir and, in any such case, the heir, with regard to such pre-legacy, shall be considered as a legatee. [Article 709 – Civil Code])

The immovable in question was a small two-storey property located in Gzira. A legal expert was appointed by the court who took into consideration every aspect that could have affected the value of the same property, i.e. the location, potential development etc. According to local plans, the property was declared a landmark building, which hence implied that no development could take place except within the limits of the regulations imposed on similar properties, which also excluded increasing the number of storeys of the same property.

The expert stated that the property was in good condition although it required some maintenance, including the installation of electricity and water supplies. The expert also noted that the same property was vacant and subject to an annual and perpetual emphyteutical grant of Lm1.85. The expert valued the property at Lm45,000 (EUR104,822). He also stated that this property could not be conveniently divided.

The Court referred to the judgement Ellul vs Coleiro (1959) where it was stated that it has been well established by Maltese Courts that to demand the liquidation of an inheritance, it is necessary that the plaintiff of the case be an heir or at least a legatee. In the case Grech Carmelo vs Dr Tonio Azzopardi (2005) the Court made reference to Articles 515-523 of the Civil Code which deal with sale by licitation in cases of partition. Article 515 of the Code states:

515. (1) Where common property cannot be divided conveniently and without being injuriously affected, and compensation cannot be made with other common property of a different nature but of equal value, it shall be sold by licitation for the purpose of distributing the proceeds thereof.

(2) The same rule shall apply if, in a partition of things in community, there are some which no one of the co-partitioners is able or willing to take.

Article 516 goes on to state that: Any of the co-owners, whatever his share of the property, may demand the sale by licitation, where competent.

The quoted judgement also made reference to Article 518 (1) which states that

518. (1) A sale by licitation which takes place with the consent of all the co-owners, is not subject to any formality, and may be made by means of any person and in whatsoever manner the co-owners may agree upon; but in any such case there is no sale until the highest bid has been accepted and, if the licitation is in respect of immovable property, until a contract is made by means of a public deed.

When the full consent of all co-owners is lacking, the Court must decide on the procedure to be followed.

The Court also quoted Article 496 of the Civil Code dealing specifically with partition of common property which states

496. (1) No person can be compelled to remain in the community of property with others, and each of the co-owners may, at any time, notwithstanding any agreement to the contrary, demand a partition, provided such partition has not been prohibited or suspended by a will under the provisions of article 906.

(2) Nevertheless, an agreement to the effect that property shall continue to be held in common for a fixed period not exceeding five years is valid; and any agreement for a longer period, is null in so far as it exceeds five years.

(3) Any such agreement may be renewed.

The Court further noted that licitation is the exception to the rule and acts as an extraordinary remedy. This was stated in the judgement Rita Grech et vs Giuseppe Zammit (1969) which moved on to claim that this remedy is resorted to solely when division is only possible with prejudice to the co-owners.

The above-quoted Article 515 of the Code specifically states that licitation may be resorted to: [w]here common property cannot be divided conveniently and without being injuriously affected, and compensation cannot be made with other common property of a different nature but of equal value…

The Court referred to Zammit vs Grech (1983) which clearly stated that when there is a case of common property, termination of such a community may take place by a division. If such division cannot take place without damage, then licitation is the method to relieve the co-owners of the community state they are in.

The plaintiffs declared that all assets apart from the property in question were successfully divided. The Court considered all the evidence particularly the report drawn up by the legal expert who declared that the immovable was not conveniently divisible and hence warranted a sale by licitation. The Court hence ordered the sale by licitation of such property.