The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia, on November 11, 2011 in the case “Mark Schembri & Sons Limited vs Daniel Vella and his wife Lisa Marie Vella”, held, among other things, that the owner of an upper tenement had no right, save with the consent of the owner of the yard below, to invade the airspace over this yard and this even simply to fix water/drain pipes over such airspace. By doing so, it declared that the owner of the upper tenement had committed an act of spoliation
The facts in this case were as follows:
Whosoever has the ownership of the land, has also that of the space above it, and of everything on or over or under the surface
The Company Mark Schembri & Sons Ltd were the owners of a warehouse in St Venera Street, Msida. The owners of the airspace above, Daniel and Lisa Marie Vella, developed their property by building three apartments and penthouses.
They installed water and drain pipes at the back of the apartments and connected them with the existing water and drainage systems of the lower tenements. To install these pipes, the Vellas had to encroach on the airspace of the company’s backyard.
The company subsequently proceeded by filing an action known as the actio spolii, claiming to have suffered an act of spoliation. It requested the court:
• To declare that the Vellas committed an act of spoliation and;
• To condemn them to remove these pipes which invaded their airspace over their yard within a short and peremptory time limit.
The company also sought permission to carry out such works and this with the assistance of a court-appointed architect at the Vellas’ expense. Article 535 (i) of the Civil Code provides that:
“Where any person is by violence or clandestinely despoiled of the possession, of whatever kind, or of the detention of a movable or an immovable thing, he may, within two months from the spoliation, bring an action against the author thereof demanding that he be reinstated in his possession or retention, as provided in Article 791 of the Code of Organisation and Civil Procedure.”
In reply, Mr and Mrs Vella contested the action. They claimed that it was filed after the two months time limit from the alleged act of spoliation. They also disputed despoiling the company’s possessions.
On December 15, 2010 the Court of First Instance dismissed the company’s action, finding that no spoliation was committed in the circumstances. It considered a report, drawn up by an architect appointed by the court. In this report, it was stated that:
• The Vellas had a right to develop the airspace over the company’s property;
• These apartments were constructed in conformity with permits issued by Mepa;
• The Vellas’ water and drain pipes were installed according to health regulations.
• As a result the volume of water and drainage flowing through the existing drain pipes increased considerably. As regards the volume of rain water flowing downwards, the increase was marginal, as the area of the roof remained more or less the same.
• The Vellas had a right to connect their pipes with the existing system in terms of Article 104(2) of Chapter 10 of the Laws of Malta.
The First Hall of the Civil Court also considered the three elements, constituting an act of spoliation.
• Material possession of the victim: possession could be of any nature whatsoever. A claimant had to produce proof that he had possesso di fatto and not possession based on mere tolerance, which was not sufficient for the purposes of an action against spoliation. A person need not possess as owner. Possession need not be legitimate. A person could also possess in bad faith.
• There had to be an act of spoliation or an act of molestation.
• Legal action had to be made within two months from the day when the act of spoliation was committed.
Reference was made to case-law.
The court’s consideration was limited to the fact of spoliation and possession.
According to Article 791(a), Chapter 12:
“The defendant in a spoliation suit brought within the period of two months from the day on which the spoliation took place may not raise any plea other than dilatory pleas, before he shall have restored the thing to its former condition and fully re-vested the party despoiled within the time which, according to circumstances, may have been fixed in the judgement, without prejudice to any other right appertaining to the defendant.’’
Article 791(3) of Chapter 12 states that:
“The court shall limit its inquiry to the question of possession or detention, and to the question of spoliation.” The court said that the purpose of this type of action was intended to provide a quick and effective remedy to let no person disturb the “state of fact” arbitrarily, and to restore the pre-existing status. Defendant’s pleas were limited to “dilatory” pleas.
The action against spoliation was a rule of public order based on exigencies of social utility to protect any form of possession in order to prevent a person from taking the law into his hands.
The court considered that it was also possible for a person to suffer spoliation to his right of airspace above his property.
There was no requirement to show that the person committing the act had the animus spoliandi – the intention to despoil. It only had to consider whether objectively there was an act of spoliation.
Physical or moral violence was not necessary upon the person in possession. It was enough if an act was done against the consent of the owner.
The court considered Article 104(2) of Chapter 10 which provides that:
“The owner or occupier of the upper part of a house is bound to permit the formation, from the lower part of the house up to the roof of such house, of such ventilators as may be necessary according to the provisions of Article 97, and the owner or occupier of the lower part is bound to permit the formation, in such part of the house, of communication pipes or conduits from the upper part to the public sewer.”
The law created servitude in favour of the higher tenement. The company had no right to prevent the Vellas from connecting with the water and drainage system of the block.
The First Court decided that Mr and Mrs Vella had not performed any act of spoliation and only acted in accordance with Article 104(2) of Chapter 10 of the Laws of Malta.
Aggrieved by this decision, the company entered an appeal, calling for its revocation.
On November 11, 2011, the Court of Appeal gave judgement by revoking the decision of the First Court.
The following reasons were given for the court’s decision.
• Right to airspace: an owner had a right to the airspace above his property.
Article 323 of Chapter 16 provides that:
“Whosoever has the ownership of the land, has also that of the space above it, and of everything on or over or under the surface; he may make upon his land any construction or plantation, and, under it, any work or excavation, and draw therefrom any products which they may yield, saving, however, the provisions relating to Praedial Easements under Title IV of Part I of Book Second of this Code and any other provision of law in regard to fortifications or other works of defence.”
The court said that Mr and Mrs Vella had no right, save with the consent of the company, to invade their airspace over their yard and this even simply to fix pipes over the company’s airspace from the third level upwards. By doing so, it declared that the Vellas had committed an act of spoliation.
The court said that the company was justified to request Mr and Mrs Vella to remove those pipes. As the pipes from the second level downwards had already been in place, these pipes were not affected by this action.
The court declared that by laying water and drain pipes on the external wall of their apartments from the third level upwards, the Vellas had invaded the company’s airspace over its yard.
It condemned Mr and Mrs Vella to remove these pipes within one month.
In case the Vellas remained inactive, the company was authorised to remove these pipes under the supervision and direction of a court-appointed architect, at Mr and Mrs Vella’s expense.
Dr Grech Orr is a partner at Ganado & Associates.