The Court of Appeal, composed of (outgoing) Chief Justice Vincent De Gaetano, Mr Justice Joseph Filletti and Mr Justice Geoffrey Valenzia on September 6, 2010 in the case “Bernadatte Licari vs Victor Emanuel and Sylvia Gusman et”, held, among other things, that in a block of apartments it was not lawful for a person to deny another resident use of some common part, even if he had procured the consent of the majority of residents.

The facts in this case were as follows:

Bernadette Licari had purchased flat No. 9 at Crown Towers, Tower Road, Sliema on January 30, 1998, which included a share in the common parts of the block, and in the adjacent block called The Crown.

Victor and Sylvia Gusman had acquired the penthouse No. 10 on the ninth floor on October 29, 1997 of Crown Towers, which included rights to the common areas, comprising the main door, entrance fittings in the staircase and landings, the lift and the drains.

In 1999, Mr Gusman decided to segregate part of the landing in front of his penthouse door by setting up a wall and on October 4, 2003, he fixed a door, denying Ms Licari access to his part of the landing on the ninth floor. She claimed to have been despoiled, suffering loss of use of that part of the landing. It was stated that this amounted to unlawful spoliation. Within the two months time limit, she proceeded to file legal proceedings, requesting the court:

(1) To declare this act, to constitute spoliation in terms of article 535 of the Civil Code, as by closing part of the landing, Mr Gusman denied her access;

(2) To condemn them within a short and peremptory time limit to reintegrate her rights of possession, and to order them to restore the landing to its former condition: to remove the door and their personal effects from that part of the landing.

She also requested authorisation to carry out the necessary works in case Mr and Ms Gusman failed to comply.

Legal action was taken against Mr and Mrs Gusman personally as well as against him as administrator of the Crown Towers Association and Crown Owners Association.

Article 535 (1) of the Civil Code provides that: “Where any person, is by violence or clandestinely despoiled of 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 by section 791 of the Code of Organisation and Civil Procedure.”

In reply, Mr Gusman pleaded that:

• He should not have been sued as administrator.

• Ms Licari’s legal action was null and void in terms of article 8 of the Condominum Act. Article 8 states (1) that “without prejudice to the provisions of sub-articles (5) and (7), the condomini may by the vote of the majority mentioned in article 22(7), provide for the making of alterations to, or innovations in, the common parts which bring about an improvement or the more comfortable use or the better enjoyment of the common parts.

(2) Without prejudice to the generality of the preceding sub-article, the following shall be deemed to be alterations or innovations:

(a) the widening of the entrance door;

(b) the installation of a lift;

(c) the installation of a hall-porter system;

(d) the conversion of a yard into a garden or into an internal parking space.

(3) Without prejudice to the provisions of sub-articles (5) and (7), the following alterations or innovations to the common parts shall not take effect unless with the unanimous consent of all the condomini:

(a) those which change the aesthetics and decor of the condominium; or

(b) those which seriously affect the use or enjoyment of any common part by any of the condomini; or

(c) those which may prejudice the stability or the security of the building.

• Mr Gusman said that he had obtained the consent and written authorisation from the majority of co-owners.

• The legal action was filed prematurely, as he had never been asked to remove all obstacles on the landing of the ninth floor.

• There was no act of spoliation. It was alleged that Ms Licari did not have possession or title of this part of the landing.

• The door which he set up, was of no prejudice to her. She had no right to use this area.

• He also reserved the right to file an action of damages against her.

On October 18, 2007, the first court decided in favour of Ms Licari. The court considered that in the block of apartments, there was a landing on each floor. The residents of both blocks of apartments, Crown Towers, and The Crown had access to the landings.

These two blocks were adjacent to each other and were built by the same original owner.

As a result of the works carried out by Mr Gusman, the landing on the ninth floor was made smaller. It was argued that Mr Gusman also restricted the use of the other residents.

The court said that this type of action (against spoliation) was a requirement of public order and was designed so that the proceedings would be speedy.

Three elements had to be proven.

(1) Material possession of the thing despoiled;

(2) The taking of possession;

(3) Action had to be filed within two months from the act of spoliation.

Possession must not be equivocal. The court had to consider limitedly the fact of possession and the act of spoliation. It was not necessary that possession was exclusive. Spoliation could be committed even if a person suffered a partial loss of possession; re: Gatt vs Cini dated February 4, 2003.

The court said that it had no doubt that Mr Licari was in possession of the landing on the ninth floor. She had a right to use the common parts of both the Crown Towers and of the Crown.

The area occupied by Mr Gusman was part of the common parts, and did not form part of the penthouse. It did not result that Mr Gusman had acquired in an exclusive manner this area of the landing.

Even if Mr Gusman established that he had acquired this area outside his penthouse, such sale could not be considered valid, without her consent. Prior to the works carried out by Mr Gusman, all residents enjoyed access to this area, which had a window overlooking a common shaft. Mr Gusman’s act not only prevented Ms Licari from using that part of the landing but also from taking advantage of this window.

The court said that in an action against spoliation, it was sufficient to prove loss of possession. It was not necessary to show ulterior damage: re: Kissaun vs Tabone CA dated October 29, 1999. Material possession need not be exclusive: re: Pisani vs Farrugia dated January 21, 1994.

• Taking possession: It was not necessary to prove violence. It was enough if there was lack of consent, express or tacit of the person who suffered spoliation.

In the circumstances, it was evident that Mr Gusman’s act was done without Ms Licari’s consent consent, and despite her firm opposition.

She also had taken legal action within the two month time limit. Mr Gusman’s motives were wholly irrelevant in these proceedings, pointed out the court.

The court in addition considered that a co-owner had no right to deny other co-owners, rights of servitude. Any limitation to a right of servitude had to result from a public contract.

The works perpetuated by Mr Gusman were not permissible under the Condominium Act, article 8.

It was not lawful to deny one resident use of some common part, even if with the consent of the majority.

For these reasons, the first court condemned Mr Gusman to remove all obstacles and authorised Ms Licari, in case he was in default.

Aggrieved by the decision of the first court, Mr and Mrs Gusman entered an appeal, calling for its variation.

They reiterated their plea of defence that they had acquired the landing on the ninth floor, outside their penthouse. It was stated that Ms Licari had no rights and no juridical interest.

Ms Licari on the other side, maintained that she suffered loss of possession/use of the landing and that this was enough to prove spoliation.

On September 6, 2010, the Court of Appeal gave judgment by dismissing the appeal and by confirming the decision of the first court.

The following reasons were given for the court’s decision:

Material possession: There was no doubt that Ms Licari was using the landing and accordingly, had possession. It was not proven that Mr Gusman had any exclusive rights. The use by Ms Licari of the landing was enough to base an action against spoliation.

If Mr Gusman felt that his property rights were encroached, he could file separate legal proceedings. As regards costs, the court concluded that Mr Gusman should bear all the costs of this lawsuit.

Dr Grech Orr is a partner at Ganado & Associates.