The Court of Appeal, in a judgement delivered on the 17th June 2025 (Case 65/20) confirmed the decision of the First Court whereby the owner of the airspace was found to have breached the rights of the owners of underlying apartments who had the right of use of the roof.
The owners of the apartments had acquired their respective apartment together with a right of use (without limitation) of the roof the block of apartments. What is interesting in this case is that in the said contracts, the original owner had retained the right to build over the said roof, in which case the said right of use had to be availed of on the “resulting uppermost roof” (“bejt hekk rizultanti”).
The owner of the roof argued that through the inclusion of this phrase, it was clear that the right of use had to be exercised over any resulting roof, even if the said roof is smaller in dimension from the one originally existent.
The owners of the apartments argued that such a phrase merely meant that their rights as originally established, could be transferred onto a higher level, but could not be transferred onto a smaller resultant roof.
The First Court and the Court of Appeal agreed with the interpretation of the plaintiffs, the apartment owners, and declared that such a phrase could not be interpreted to mean that the right of use could be transferred onto a smaller roof.
This is certainly another instance whereby the Courts have, through jurisprudence, shown how meticulous and clear the retention of the development rights of the airspace are enshrined in public deeds. This limitation must also be read in conjunction with the established jurisprudence on matters involving the opening of apertures, the erection of projections, rights in relation to overlooking, the use of services, condominium rules and legislation and structural limitations.