The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Tonio Mallia and Mr Justice Joseph Azzopardi, in the case ‘Giselle Cini v Martin Baron’ on October 31, 2014, prohibited the construction of a penthouse by the owner of the airspace not to negatively affect the right of a person to use the roof.

By virtue of the contract of acquisition dated September 28, 2004, in the acts of notary Charles Mangion as amended on December 16, 2004, Giselle Cini purchased an apartment without number on the second floor of No. 5, Kola Vella Street, Xgħajra, from Martin Baron, with the right to use the roof.

According to this contract, the purchaser had the right of use of a divided part of the roof which was situated on the part of the roof fronting, the stairwell providing access and in case of development the seller agreed to transfer all rights enjoyed by Cini on the present roof to the new roof at his expense.

The contract specifically indicated a space of 38 square metres on the roof over which Cini had right of use.

Subsequently, Baron applied to construct a penthouse, and Cini feared that she would be prevented from using her space on the roof. She obtained a prohibitory injunction and proceeded to file legal proceedings against Baron. She asked the court:

• to declare that the proposed development to build a penthouse in the airspace would violate her rights to use part of the roof assigned to her according to the contact;

• to order Baron not to carry out any works to violate her right to use part of the roof which was assigned to her, and to condemn him to leave free and clear that part of the roof which was allotted to her and this within a short time;

• to prohibit Baron from building the penthouse and any construction which denied her the right to use such part of the roof.

In reply, Baron contested Cini’s legal action. He pleaded that it was not possible for an injunction to be confirmed in perpetuity and nor to request a remedy without asking the court to first declare that she had a right which entitled her to a remedy.

As regards the merits, he claimed that as owner of the airspace, he had reserved the right to develop the airspace and to relocate the space assigned to Cini on the roof.

Under the contract, Baron had a right to build on that part of the roof which was earmarked to Cini; provided he ensured that Cini was entitled to use the roof of an equivalent area after development.

Her right of use of the roof was conditional. Baron said that Cini was not denied from using the new roof and if Cini was prevented from using the new roof owing to some legal requirement, he was not to blame.

On December 10, 2008, the First Hall of the Civil Court dismissed Baron’s preliminary pleas, and on January 19, 2011, the court accepted Cini’s requests to prohibit the development of the airspace.

The court referred to case-law. In ‘Delicata v Psaila Manché et’ dated October 17, 2003, it was held that the right to use the roof was a real right of perpetual enjoyment of immovable property.

An owner could not restrict this right of use or change the nature of enjoyment without the consent of the person having such right.

Baron was obliged to allow Cini to use her space on the roof. He could not change her rights unilaterally.

The court noted that the new roof would have different characteristics. It would be more akin to a yard of the penthouse with apertures of the penthouse overlooking it than to a roof.

Apart from the inconvenience and lack of privacy to Cini, it would be expected that the owner of the penthouse would object to have washing outside his window. Nor was it acceptable to hold barbecues or other parties in front of the windows of the penthouse.

In this respect, the First Hall of the Civil Court concluded that what Baron proposed was not acceptable and this even in respect of good neighbour relations.

Aggrieved by the decisions of the first court, Baron entered an appeal, calling for the revocation of these two decisions of the first court.

The court rejected the preliminary pleas raised by Baron and confirmed the first court decision of December 19, 2008. The court said that it was legally admissible for Cini to ask to be allowed to enjoy her right of use of the roof. It maintained that her claim was filed properly.

An owner could not restrict the right of use or change the nature of enjoyment without the consent of the person having such right

It was noted that the proposed development would create restrictions to Cini’s right of use of the roof. This was not acceptable as Baron was obliged to let Cini use the roof in the same way.

In ‘Grima v Atkins’ dated July 6, 2007, the court said that the right to use the roof had a wide meaning. There could be some administrative restrictions; however, fixing pipes, and washing wires was normal use. There were limitations as to use in order to preserve good neighbour relations.

For instance, the roof could not be used as a toilet for pets or for parties where loud music was played. The use had to be normal and reasonable and should not disturb other owners in their enjoyment of the roof.

The right to use the roof – meant more than having access to the roof, re ‘Spiteri v Popeye Investments Ltd’ dated November 3, 2006.

It included the right to fix washing wires and placing apparatus such A/C units. Use had to be reasonable and under the least inconvenience to the other owners.

The construction of a penthouse imposed restrictions on the right to use the roof. On the roof of a penthouse, it was not possible to hang clothes and install gas cylinders. In addition, access was not through an internal staircase; re ‘Caruana Dingli v Bonello Ghio’ dated April 1, 2014.

In ‘Gerada v Sant’, dated March 25, 2011, the court did not permit the construction of a penthouse, as the right of use of the roof was reserved.

This right could not be reduced unilaterally by the owner of the airspace, maintained the court.

Although Cini would be allotted the same space, her rights would still be prejudiced, pointed the court.

The right to use the roof was a servitude which could not be reduced and the owner should not do anything to restrict its enjoyment, except to maintain good neighbour relations.

Her normal use of the roof, hanging clothes and having barbecues would be made more awkward with the owner of the penthouse having windows over her part of the roof.

If Baron felt that he should request Cini to exercise her servitude (use of roof) in another part, he had to make a specific request in terms of article 474 of the Civil Code, but he could not decide unilaterally to change the nature of her servitude.

For these reasons, on October 31, 2014, the Court of Appeal gave judgment by confirming the first court decision of November 19, 2011.

Dr Karl Grech Orr is a partner at Ganado Advocates.