Plaintiffs were owners of a property situated in Ghajnsielem, which was adjacent to property owned by the defendants, which was being developed. The defendants excavated under street-level and built a series of garages. Originally, when defendants initiated the works, they kept a distance of 75cm from the plaintiffs’ dividing wall. However, once the building of the garages started, defendants excavated and actually constructed with the use of concrete, under the property of the plaintiffs.

All defendants left were some random rocks which dried and were crumbling. Plaintiffs claimed that this was tantamount to a breach of their right to property and was of danger to their premises.

The plaintiffs requested the Court:

• To declare that the defendants had excavated less than 75cm away from their dividing wall;

• To declare that the remaining rocks were in such a bad state due to the manner in which the excavation was done in breach of the law;

• To condemn the defendants to fill in the excavated area in excess of the 75cm limit imposed by law;

• To declare that defendants carried out excavation and construction works under the plaintiffs’ property;

• To condemn the defendants to remove all constructions erected under the plaintiffs’ property;

• To nominate an architect to monitor the necessary works.

The defendants pleaded that:

• The plaintiffs’ claims were unfounded both in fact and in law.

• They were constrained to excavate so as to build an additional wall adjacent to the plaintiffs’ dividing wall since the latter wall was not of the thickness prescribed by law.

• Subsequent to the building of the garages, since the ground beside the plaintiff’s property was not solid and compact, defendants removed the loose earth with the aim of replacing it with more solid material to ensure stability of the properties.

Plaintiffs themselves had carried out excavation works without respecting the 75cm distance rule.

The Court considered all the evidence produced. Reference was made to Article 439 of the Civil Code which states:

439. “It shall not be lawful for any person to dig in his own tenement, any well, cistern or sink, or to make any other excavation for any purpose whatsoever at a distance of less than seventy-six centimetres from the party-wall.”

By virtue of a warrant of prohibitory injunction granted by decree of the Court in 2000, defendants were prohibited from excavating and constructing beyond the distance stipulated by Law.

The legal expert appointed by the Court confirmed that the distance imposed by Law was not respected and proposed solutions for this state of affairs.

The court stated that Article 439 of the Civil Code is very clear and self-explanatory. It clearly stipulates that an excavation is allowed if done beyond the maximum contemplated by the Legislator. The court quoted a series of judgements such as Grixti et vs Schembri (1959) and Calleja vs Gaetana Debono et (1950) which essentially stated that everyone has a right to exercise his rights over his own property however to the extent that such do not prejudice the rights of others. If this principle is breached such as for instance by virtue of breaching the distance laid down by Article 439 which outlines an absolute rule, the aggrieved party has a right to claim damages and demand that the original state of affairs be restored.

The court noted that the Building Industry Consultative Council had made a report proposing the removal of such legal provision. However, till this day, nothing has been changed. The court also emphasised the fact that despite the plaintiff’s property not having actually suffered any damage, in the case that Article 439 was breached, the court could not remain inactive and allow such breach.

The defendants’ intentions were considered irrelevant by the Court and from the evidence, it did not result that there was any agreement made at any point between the parties.

It was clear from the evidence that the excavation was done precisely contrary to the law so that more space would be acquired for the garages.

The court stated that the plaintiffs had every right to claim damages from the defendants.

The court decided in favour of plaintiffs stating that defendants did indeed breach the rule stipulated by Article 493 of the Civil Code and ordered that certain adjustments be made.

This case may be the subject of an appeal.