The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia on January 31, 2011, in the case “Architect Joseph Jaccarani, Maria Rita Jaccarani, Emily Scicluna and Louise Sammut” held, among other things, that the co-owners or co-possessors of the common parts of a block of flats had a right to object to any change in the common parts which were effected without their consent. In this case a wall was built in the entrance hall, which narrowed it against the consent of some of the co-owners or co-possessors.
The facts in this case were as follows.
Architect Joseph Jaccarini, Maria Pia Jaccarini, Emily Scicluna and Louise Sammut were owners respectively of Flat 4A, Flat 2A and Flat 6A at 198 Tower Road, Sliema. They all enjoyed use of the common parts of the apartment block.
Star Investments Ltd, the company which owned the airspace of 198 Tower Road, carried out works to refurbish the property and its facade. Not all flat owners were satisfied with the works.
The company went ahead without the unanimous consent of all the apartment owners, with certain structural changes in the entrance hall. It removed the marble slabs against which letter boxes were attached, and put up a wall in the entrance hall with the result that the hall became narrower.
Plaintiffs, the owners of flats 4A, 2A and 6A, protested and proceeded by filing the possessing action, the action against spoliation within two months, requesting the court to order the re-integration of their rights.
They asked the court to declare that the company had abusively molested their possession of the common entrance hall, thereby committing an act of spoliation; to condemn the company within a short and peremptory time limit to remove such wall and to restore the hall to its original condition; and, in case the company failed to act, to authorise them to remove the wall at its expense, under the supervision of an architect to be appointed by the court.
In reply the company disputed having acted abusively. It submitted in its defence that it was entitled to carry out the works; that the works had been approved by the flat owners of the apartment block and that it had not committed any act of spoliation.
It also challenged the jurisdiction of the courts to hear this dispute, maintaining that according to the Condominium Act, disputes had to be referred to arbitration. Article 23 of Chapter 398 of the laws of Malta provides:
“(1) Any condominus who disagrees with a decision of the meeting on the grounds that the decision is contrary to law or to the regulations of the condominium or is unreasonable or oppressive may refer the matter to arbitration.
(2) The reference of a matter to arbitration in accordance with sub-article (1) shall be made by the dissentient condominus within 30 days from the date the decision of the meeting is notified to him in accordance with the provisions of article 22(3
Provided that where the first proviso to article 22(3) applies, the period of 30 days shall commence to run from the date the decision is affixed on the notice board in terms of sub-article (5) of the said article 22.
(3) If the arbitrator finds for the dissentient condominus, he may annul or amend the decision.”
The First Hall Civil Court considered that in this case, the owners were not contesting the decision of the Association of Co-Owners under Chapter 398.
They claimed to have been despoiled by the company carrying out the works in the entrance hall without their consent and in a clandestine manner. The applicable provisions were article 534 of the Civil Code and article 791 of Chapter 12.
The First Hall Civil Court declared itself to be competent to hear the lawsuit and to decide this case of spoliation. During these proceedings the owners limited their claims to the wall which the company had erected in the entrance hall.
On October 29, 2009, the First Hall Civil Court decided that the company had committed an act of spoliation and condemned it to remove the wall and restore the entrance hall under the supervision of an architect within a short and peremptory time limit of 60 days. If the defendant company failed to carry out the works, the court authorised the owners to remove the wall at the expense of the company, under the supervision of an architect.
The First Hall Civil Court considered that the action against spoliation was intended to protect a person’s possession, of any type, whether movable or immovable. The possession could even be illegitimate. The action was to safeguard public and social order. It was unlawful for a person to take arbitrary action and disturb another’s use of a thing. Only dilatory pleas were admissible in an action against spoliation: P. Demarco vs F. Fiteni CPA dated June 6, 1957, A. Pisani vs E. Ferris CPA dated June 30, 1989, M. Fenech vs P. Zammit CPA dated April 12, 1958.
The First Hall Civil Court had no doubt that plaintiff owners had suffered a loss of enjoyment of the entrance hall which was in their possession. The owners needed only to prove that they had material possession at the time the alleged act of spoliation was committed. J. Vassallo Gatt noe vs D. Camilleri pro et noe (A.C. dated January 26, 1996).
The action against spoliation was available to a co-owner: re: C. Bugeja vs P. Borg (PA dated March 1, 1951) in respect of a partial loss or disturbance of a person’s rights of possession: Major P. Cordina vs R. Aquilina (A.K. dated December 12, 1988).
In an action against spoliation, the court had to consider the fact of possession and the fact of spoliation. The First Hall Civil Court said that the company had committed an arbitrary act against the owners of Flats 4A, 2A and 6A. It was not necessary to have a complete loss of possession: C. Vella vs S. Vella (PA dated November 4, 1957).
The resolution of the association of the apartment block had been taken only after the works were completed, on February 19, 2007. The First Hall Civil Court pointed out that the Condominium Act was not intended to substitute the institute of spoliation: re: F. Abela vs A. Bonavia (PA dated June 25, 2009).
Aggrieved by the decision of the First Hall Civil Court, the company entered an appeal, calling for its revocation. It put forward the argument that it had the approval of the association of the block of apartments in terms of a Condominium Agreement.
It reiterated that any dispute had to be referred to arbitration. The company maintained that it was carrying out a refurbishment project for the benefit of the whole block and that there was no ground for opposition.
On January 31, 2011, the Court of Appeal gave judgement by dismissing the appeal and by confirming the decision of the First Hall Civil Court.
The following reasons were given for its decision.
The court noted that there was no decision of the association, taken according to law and published as required by law in terms of Chapter 398.
There was no evidence of a meeting convened according to law. In addition, Article 8 (3) of Chapter 398 required unanimity in case of any structural change. In this case it was evident that there was no unanimous consent.
The company was therefore obliged to obtain the consent of all co-owners or obtain the approval of the association at a meeting held according to law. Any decision had to be published and placed on the notice board. In this way all co-owners had to be notified of the meeting’s decision.
In this case the owners had a right to object to any change in the common parts, which had been effected without their consent: Licari vs Gusman dated CA September 6, 2010.
The fact that the owners were benefiting from the works was not relevant. It was clear that the entrance hall had been narrowed against their consent.
The company could not act unilaterally and had to seek due authorisation, concluded the court.
Dr Grech Orr is a partner at Ganado & Associates.