The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia, in the case Anthony Portelli and others vs Questo Café Ltd, on December 3, 2010, held, among other things, that a co-possessor did not have authority to restrict the free enjoyment of the other co-possessors. The consent from all co-possessors had to be obtained. One co-possessor could not unilaterally disturb the possession for the other co-possessors.

The facts in this case were as follows.

Anthony Portelli, Cedric Valletta, spouses George and Margaret Portelli were the owners and occupants of the flats 662/04, 662/03, 662/01 respectively, all located in St Joseph High Street, Ħamrun. Spouses Ramsey and Doreen Ziadeh were the tenants and occupants of flat 662/2.

All flats shared certain common parts: The entrance, the stairs, the roof, the drains and the internal yard.

On September 19, 2006, the company Questo Café Ltd acquired tenement No. 663 in St Joseph High Street, Ħamrun, which was the ground floor premises.

The airspace was excluded.

It so happened that the company fixed two air conditioner compressors on the common roof of the block of apartments No. 662 without the consent of the flat owners and occupants of the block.

It was stated that a company official of Questo Café Ltd had deceived Ms Ziadeh. It was alleged that she was led to believe that the company had obtained the consent of the other co-possessors to place the airconditioners on their roof.

The flat owners and occupants of block No. 662 claimed to have suffered a violent/clandestine act of spoliation. They proceeded by filing legal proceeding against the company, in order to re-integrate their rights of possession of the roof.

They asked the court:

1. To declare that the company had committed an act of spoliation to their detriment;

2. To condemn the company within a short and peremptory time limit to remove the air conditioners and to reintegrate their possessory rights, without the units, copper pipes and related accessories, which were fixed on the roof without their consent;

3. To authorise them to carry out all necessary works in case the company failed to remove the alleged illegal act.

The company, in reply, contested the legal action against it. It submitted that their claims should be dismissed, as it denied committing an act of spoliation.

The company disputed deceiving Ms Ziadeh. It said it had obtained the consent of one of the co-possessors.

On June 26, 2008, the First Hall of the Civil Court decided in favour of the flat owners and occupants.

It ordered the company to restore the roof to its original pristine condition within 15 days by removing the two compressors, pipes and accessories. If the company remained inactive, the flat owners and occupants were authorized to carry out all necessary works, at the company’s expense, in order to restore full possession of the roof in question.

The court explained that three elements had to exist to justify an action against spoliation:

1. Plaintiff had to have material possession;

2. Defendant had to take possession in a violent and clandestine manner;

3. Plaintiff had to file legal action within two months from the act of spoliation.

It was not in dispute that the flat owners and occupants were in possession of the roof. Their possession was unequivocal and nor was it contested by the company.

The act of spoliation could have been done either by violence or in a clandestine manner. The existence of one of such elements was sufficient to satisfy the requisites for spoliation. The court noted that it had been proven that the company had installed the compressors in a clandestine manner.

The owners and occupants discovered the compressors by chance, while carrying out maintenance work to prevent water seepage from the roof. None of the co-owners and occupants had given their consent.

The First Hall of the Civil Court said it was not necessary to prove any physical or moral violence. It was enough if the act was done without the consent of the co-possessors.

In addition, the court said that legal action had been filed within two months from the act of spoliation.

Aggrieved, by the decision of the first court, the company entered an appeal, calling for its revocation.

On December 3, 2010 the Court of Appeal gave judgment by dismissing the company’s appeal and by confirming the decision of the first court.

The court again ordered that the property in question be restored to its original condition within 15 days. The following reasons were given for the court’s decision.

1. No consent: Ms Ziadeh had not given her consent for the compressors to be fixed on the roof. She had indicated that, if the company would procure the consent of the other co-possessors, she would find no objection.

2. Even if, for argument’s sake, she had given her consent, this did not mean that the company’s act could not amount to an act of spoliation vis-à-vis the other co-possessors.

A co-possessor could not prejudice the other co-possessors. Reference was made to article 491 of the Civil Code, which provides that:

“Each of the co-owners is entitled to make use of the common property, provided that

(a) the use be made according to the destination of the property as established by usage;

(b) it be not made against the interest of the community, or in such a manner as to prevent the other co-owners from making use of the common property according to their rights.”

In addition, a co-possessor could not, by unilateral act, harm the interests of the other co-possessors.

A co-possessor did not have authority to restrict the free enjoyment of the other co-possessors. The consent from all co-possessors had to be obtained. One co-possessor could not unilaterally disturb the possession for the other co-possessors.

In this case, the flat owners’ and occupants’ rights of possession had been disturbed by an act of violence. There was no physical violence as such, but the company’s act had been done against their wish and without their knowledge, and each possessor had a right to defend the integrity of the thing held in common.

The court noted that doctrine on the matter was consistent. When there was possession in common, this possession was in solidum (joint and several). One co-possessor could not bind nor prejudice the others.

The fact that, in certain instances, a favourable act by one co-possessor could benefit the others did not also mean that a co-possessor could also prejudice the others. In the court’s opinion, a unilateral decision by one of the parties could not prejudice the interest of the others, who did not participate in taking such decision.

Contrary to what the company stated, it had not been proven that the roof was partitioned among the co-owners and occupants. In this case, therefore, it was to be deemed that each co-possessor had indivisible possession of the entire roof of the block of apartments.

The court futhermore had been satisfied that, in the circumstances, all the requisites for spoliation had been established.

Dr Grech Orr is a partner at Ganado & Associates.