In a recent judgment, the Court of Appeal examined key legal issues that frequently arise in property development. The case of Laferla et vs. Mifsud focused on three primary matters: the legal restrictions on excavation near a party wall, the rights of neighbours to modify a shared wall, and the implications of distance requirements for windows and light access. Through its ruling, the Court provided important clarifications on how the law should be applied in such cases.
Excavation Near a Party Wall
One of the main issues in this case was the legality of excavation near a party wall. Article 439 of the Civil Code clearly states that no excavation can take place within 76 centimetres of a shared wall. A common debate in such cases is whether this restriction applies only to the removal of solid rock or whether it also includes the removal of loose material. The Court ruled that the type of material removed is irrelevant and that the law applies equally to both rock and loose material.
In this particular case, the defendant argued that the property in which he carried out the excavation was built on loose material, suggesting that its removal should not be considered an excavation under the law. However, the Court rejected this argument, stating that the law prohibits excavation near a party wall regardless of the nature of the material. This conclusion was reached despite expert testimony in the lower court confirming that the defendant had, in fact, removed loose material.
Another important aspect considered by the Court was whether the defendant’s excavation had caused any damage to the neighbouring property. The Court emphasized that this was irrelevant since Article 439 does not merely prohibit works that cause damage but rather prohibits the works themselves, regardless of their effect.
When considering the appropriate remedy, the Court noted that the plaintiff had not specifically requested the reinstatement of the removed material. As a result, the Court could not order the reconstruction of the 76-centimeter section that had been excavated. However, it remarked that if the plaintiff had made such a request, it would have been granted. Instead, the Court awarded the plaintiff €5,000 in damages, applying other legal principles to justify the compensation.
Modifications to a Party Wall
The Court also addressed the legal principles surrounding the use and modification of party walls. It reaffirmed the general rule that a neighbour has the right to use a common wall without requiring the consent of the other owner, regardless of who technically owns the wall. However, the specifics of this case complicated the application of this principle.
The dispute arose because the defendant sought to extend an existing wall above his roof level. The upper section of this wall, known as the opramorta, was only six inches thick, while the lower section of the wall was nine inches thick. The defendant wished to continue building upwards, but he wanted the new section to match the thickness of the lower part of the wall.
Instead of extending the wall on his own property or seeking legal action to require the plaintiff to build the opramorta to the correct thickness, the defendant unilaterally demolished the existing opramorta and rebuilt it to a thickness of nine inches. The Court ruled that this action was not permissible and classified it as an act of spoliation, meaning an unlawful interference with another person’s property. The ruling made it clear that any changes to a party wall must be done through legal means and not by taking matters into one’s own hands.
Windows and Distance Regulations
Another key issue examined in this case was the impact of new construction on a neighbouring window. The dispute arose when the defendant built a column on his property, which extended higher than a parapet wall that separated the two properties. The plaintiff argued that the column blocked light from entering his window, which faced the shared yard. He further claimed that the column violated legal distance requirements, as it was less than three meters away from his window.
The Court analysed the facts and found that when the plaintiff’s window was originally built, the yard itself was already less than three meters wide. The distance between the window and the parapet wall had never met the three-meter requirement, and the new column did not reduce this distance—it simply extended higher than the parapet wall.
In its ruling, the Court emphasized that the plaintiff did not have a servitude over the defendant’s property. A servitude is a legal right that allows a property owner to impose certain restrictions or obligations on a neighbouring property, such as maintaining a clear distance for light and air. Since no such servitude existed, the plaintiff had no legal basis to demand that the defendant alter his construction. The Court reaffirmed the principle that, unless a property owner has a legally recognized servitude, they cannot impose restrictions on a neighbouring property to make up for shortfalls in legal distance requirements. Instead, every property must ensure that its own open spaces comply with the law.
This judgment serves as a clear reminder that property owners must strictly follow legal regulations when undertaking construction work. The Court’s ruling reinforces the importance of adhering to excavation limits, respecting the rights associated with party walls, and ensuring that property modifications comply with established distance requirements. Failure to observe these legal obligations can lead to disputes, legal action, and financial penalties. By abiding by the law, property owners can avoid conflicts and ensure that development projects proceed smoothly and lawfully.
