The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Tonio Mallia and Mr Justice Joseph Azzopardi, in the case ‘Brian John and Ruth Agius v Colin Galea’, partitioned a common roof of a block consisting of two apartments and garages at the request of one of the co-owners under the Civil Code. It held that the courts had overall discretion to override the lack of consent of any co-owners.
The facts in this case were as follows:
The parties were co-owners of a roof of an apartment block, St Peter’s Flats, Triq il-Għodda, Birżebbuġa, having one-half undivided shares.
As Brian and Ruth Agius did not want to remain in a state of co-ownership with Colin Galea, the other co-owner, they requested the court:
• To declare that together with Galea, they were the co-owners of the roof;
• To order the division of the roof, to appoint an architect to draw a plan of division, to divide the roof in equal portions and to order one portion to be assigned to them and the other to Galea;
• To appoint a notary to publish the act of division and for the court to fix the day, place and time of the division, as well as to appoint a curator in case Galea was contumacious.
Galea, in reply, opposed the division, claiming that the roof was indivisible. He also referred to the Condominium Act.
On January 24, 2006, the First Hall of the Civil Court decided that the property in question was not to be considered as a condominium. The court referred to Article 2 (1) of the Condominium Act. It noted that the roof was not included in article 5 of Chapter 398. The purpose of Chapter 398 was to prohibit several co-owners from using the property in a way that was not intended or from requesting a division which would prevent others from using the common parts.
The Agius couple claimed that they did not understand the meaning of “one-half undivided shares” and thought they owned half the roof. In fact, they built a room on the roof and put up a dividing wall.
On May 13, 2010, the first court dismissed Galea’s plea that the roof was indivisible in nature and ordered the partition of the roof between the parties within two months. Dr Vincent Galea was appointed to act as curator to represent Galea in case he failed to appear for the contract.
The technical expert reported that the roof and airspace belonged in equal portions to the parties. Although the expert found that the roof could be partitioned, he felt that the division would affect negatively its development, and reduce the value of the airspace.
In his opinion, the washroom was built by the Agiuses without the consent or agreement of Galea, and recommended that it be demolished so that the roof would be restored to its original condition, that is when the parties purchased the property.
The term ‘easily divisible’ meant that the property could be divided without prejudice to the interests of the parties and without causing loss of economic nature: ‘V. Camilleri et v Helen Pavia’ (PA), dated March 20, 2003.
The court considered that, for there to be a condominium, a block need not be used as a residence. It could also be used as an office, a business or a store
The court was not obliged to agree with the opinion of the technical expert and had the discretion to decide the point whether the property was easily divisible: ‘Nicholas Jensen Testaferrata pro et noe v Noble Anna Maria Spiteri Debono’ (PA), dated January 28, 2002.
The court made reference to article 496 (1) of the Civil Code: “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”.
The court had to decide whether a property could be divided. In ‘John Ellul et v Vincenza Cassar et’, dated January 2, 2003, it was held that it was enough that the property could be materially/physically divided. The division had to be convenient and not cause damage. There was loss if division would reduce the value of the property.
Reference was made to the decision of the Court of Cassation dated May 29, 1976. It was noted, however, that in the light of the bad relations between the parties, it was unlikely that the property would be developed by the parties and in this respect the court was obliged to apply article 496 of the Civil Code.
Aggrieved by the decision of the first court dated January 24, 2006 and of May 13, 2010, Galea entered an appeal, calling for its revocation. He argued that, according to the Condominium Act, the common parts of a block of apartments could not be divided without the consent of the other co-owners and that the roof was indivisible.
The court considered that, for there to be a condominium, a block need not be used as a residence. It could also be used as an office, a business or a store. Article 2 of the Condominium Act made no reference to the destination of the tenement.
A condominium consisted of a building or a cluster of buildings having common parts. The court did not feel that the Condominium Act wished to exclude the block in question, and declared that the block had to be considered a condominium for the purposes of chapter 398 of the Laws of Malta.
It was noted that, pursuant to article 31 of the Condominium Act, article 7 did not apply to a block that was built before the law came into force. In any case, the court had overall discretion and could override the lack of consent of any co-owner, and order the division of the common parts: ‘Cassar v Inguanez’, dated January 8, 2010. The court had the discretion to decide whether the refusal by other co-owners was justifiable and reasonable.
In ‘Grech v Grech’, dated September 29, 2003, it was held that the words ‘without hindrance’ meant without causing harm to the interest of the other co-owners. The words ‘without harm’ meant without reducing the value of the property. The issue of whether the court should order the sale of the property instead of its division depended on whether the property could be easily divided.
There was no doubt that the roof could be physically divided into two equal parts. A division would not affect the value of each apartment. On the contrary, the court said that the fact that each apartment would have its own roof space would increase its value. Each owner could build in his own area, provided he did not create any servitude over the other’s property.
The court said that a beam could be installed to take the weight of the dividing wall. The slope of the roof could be arranged for the rainwater to flow in opposite ways. It was possible for the division to take place without each party having to intrude on the other’s property.
In the court’s opinion, the roof could be partitioned without any hindrance and without prejudice to the interests of the parties. It concluded that, in the light of the rivalry and pique between the parties, it would be better if there was a division as proposed by the First Hall of the Civil Court.
For these reasons, on June 27, 2014, the Court of Appeal gave judgment by declaring that the block of apartments in question was a condominium for the purpose of law and, in this respect, it revoked the decision of the first court dated January 24, 2006. It confirmed the second decision of the first court dated May 13, 2010, ordering the division of the roof to the effect that the term of two months imposed by the First Hall of the Civil Court for the publication of the act of division had to commence from the date of this decision.
Dr Karl Grech Orr is a partner at Ganado Advocates.