The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia, in the case “Josephine Gerada et vs Alphonse and Elizabeth Sant”, dated March 25, held among other things that the right to develop the airspace did not entitle the developer to open new windows which overlooked the back yard of the ground floor apartment.

The facts in this case were as follows.

The owners of flats 1, 3 and 4 of No. 17, Karm Galea Street, Sliema (Josephine Gerada, Joseph, Elizabeth and her husband Anthony Sant Fournier, David, Joanna and her husband Alexander Zammit, Noella and her husband Joseph Scicluna, brothers Mark and Anthony Anastasi and Mr and Mrs Burman) complained that their right of use of the common roof had been restricted by Alphonse and Elizabeth Sant, the owners of apartment 5 of the same block.

Mr Sant had constructed a penthouse in the airspace of the common roof. He also set up a dividing wall, blocking other flat owners’ access to part of the roof, as well as a chimney on the new roof of the penthouse.

The owners of flats 1, 3 and 4 stated that Mr Sant had abusively and illegally opened windows and other apertures in the penthouse which overlooked the back yard of Josephine Gerada’s apartment, flat 1.

The argument put forward was that it was unlawful to aggravate the servitude burdening Ms Gerada’s flat.

Faced with this situation they jointly filed legal proceedings against Alphonse and Elizabeth Sant.

They requested the court to declare that Mr Sant had violated their rights of access to the common roof; to order him to restore the property to its original condition under the supervision of an architect, within a time limit to be fixed by the court, and if this was not possible to pay such compensation as the court would liquidate; and to order Mr Sant to remove the chimney within a time limit, and if in default, to authorise them to carry out the works at his expense.

The plaintiffs also requested the court to declare that the works carried out by Mr Sant, in the common staircase leading up to the roof, restricted their rights of access and did not conform to the style and width of the original staircase; and to order him to carry out works on the staircase to make it conform with the style and width of the old staircase within a time limit also to be fixed by the court.

The court was further requested to order Mr Sant to close those windows and apertures overlooking the backyard of Josephine Gerada’s internal yard; to declare that these windows and apertures aggravated the servitude burdening flat 1; and to declare Mr Sant to be solely responsible for such damages as to be liquidated by the court.

In reply, Mr Sant disputed the legal action, which he said was unfounded.

On June 26, 2008, the Court of First Instance refused to declare that Mr Sant had violated plaintiffs’ rights of access or to order him to restore the property, although it declared that Ms Gerada had a right to the keys of the gate in the staircase.

The court however declared that Mr Sant was responsible for all damages suffered by the owners of flats 1, 3 and 4 to their flats and common parts. It ordered that Ms Gerada be compensated €1,339, the Anastasis €1,456 and the Burmans €2,695.

Aggrieved by the decision of the Court of First Instance, Josephine Gerada entered an appeal requesting the court to declare that Mr Sant had violated her right to access to the common roof with the construction of the penthouse; and to order him to restore the property to its pristine condition and close the windows and apertures overlooking her yard.

On March 25, 2011, the Court of Appeal gave judgment by accepting the appeal and by varying the decision of the first court.

Giving the reasons for its decision, the Court of Appeal noted that the first court had concluded that the rights of owners of flats 1, 3 and 4 had not been disturbed. It had said that they could still use the roof and carry out maintenance to their TV aerial and their water tanks. The first court had also been of the opinion that the servitude over flat 1 included the opening of new windows, if ever the airspace was developed.

This meant, it said, that Ms Gerada should accept the opening of new windows.

While the other flat owners had limited rights to use the roof, for purposes restricted to hanging and drying clothes and maintenance of the TV aerial and water tanks, such limitations were not imposed on Ms Gerada. Her contract was clear. It gave her a servitude with full access to the entire roof as well as to any possible new roof of the apartment block, and the right to install a TV aerial and water tank.

As her right of access to the roof was unrestricted, this servitude could not now be reduced by the owners of the servient tenement.

Her right to have access to the roof and to install a TV aerial were totally independent. She would still have a right to access over the entire roof, and without restriction whether or not she had an aerial or a water tank. Mr Sant was not permitted to segregate part of the roof in order to have exclusive possession over part of it. In the circumstances, Ms Gerada had been denied access to the whole roof. It was not lawful for Mr Sant to construct a dividing wall on the roof. The use of the roof was to be considered as necessary for the enjoyment of the servitude granted to Ms Gerada in terms of article 470 of the Civil Code.

Article 470 provides that ‘‘the creation of an easement shall be deemed to include the granting of all that is necessary for the enjoyment of such easement with the least possible damage to the servient tenement. Thus the right of drawing water carries with it the right of way, and the right to cause water to be led over another person’s tenement includes the right of way along the sides of the channel in order to watch over the flow of the water, and to clean the channel and make the necessary repairs”.

It was not shown that Ms Gerada had forfeited her right of servitude by not using it for the time required by law (30 years). It could not be stated that the servitude had been terminated as per article 481(1) of the Civil Code.

‘‘An easement is extinguished by non-use for the period of 40 years in the case of property belonging to the Government of Malta or to a church or other pious institution, and of 30 years in the case of any other property.’’

Once, therefore, Ms Gerada still enjoyed the servitude, she had a right to use it, without any restrictions imposed unilaterally by the owner of the servient tenement.

The Court of Appeal therefore ordered Mr Sant to remove the wall or to pay compensation of €2,330.

As for the new windows overlooking the back yard, reference was made to Gauci vs Saliba dated August 1, 1966, where it was held that the right of an owner to develop the airspace did not mean that he had the right to open new windows overlooking the yard below.

He had to build his penthouse recessed by at least ten feet from the dividing wall. Any window which overlooked Josephine Gerada’s backyard had to be blocked.

Reference was also made to Zammit Lupi vs Ripard dated December 3, 2006, and to Zerafa Gregory vs Cutajar dated May 3, 2010, where it was stated that airspace of the yard remained the property of the owner of the yard.

The Court of Appeal noted that in similar circumstances, in Magro vs Board (PA) dated January 23, 2004, the court had ordered the closure of all new windows.

The fact that the new windows created no inconvenience was irrelevant; re: Mizzi vs Corso dated May 8, 2003. Civil law’s provisions on servitude had to be observed objectively, regardless of whether there was any inconvenience, pointed out the court.

It maintained that the windows and apertures over the yard were illegal and had to be closed. The Court of Appeal varied the decision of the Court of First Instance in part.

It declared that Ms Gerada’s right of access to the roof had been infringed. It ordered Mr Sant to remove the dividing wall within one month or pay €2,330 in compensation

If Mr Sant defaulted, Ms Gerada was authorised to remove the wall under the supervision of an architect.

It also ordered Mr Sant to close the windows and authorised Ms Gerada to carry out the works at his expense, in case he failed to take any action.

Dr Grech Orr is a partner at Ganado & Associates.