In a previous contribution, we had explained that easments, or as we often refer to them, servitudes, are defined as a right established for the advantage of a tenement (dominant) over another tenement (servient) belonging to another person, for the purpose of making use of such other tenement or of restraining the owner from the free use thereof (1).
A decision of the Court of Appeal (2) analysed a situation whereby the owner of the servient tenement at ground floor level decided to roof over his back yard. The overlying tenement, which had a balcony overlooking the said yard, albeit at the level higher than the new roof, argued that through his actions, the owner of the servient tenement restricted or impaired the easement enjoyed by the dominant tenement, namely the right of prospect onto the yard owned by the servient tenement.
The Court held that under Maltese law, the easement of prospect is not defined. The Court however referred to Article 900 of the Italian Civil Code which defines this easement as:
“Le finestre o altre aperture sul fondo del vicino sono di due specie: luci, quando danno passaggio alla luce e all’aria, ma non permettono di affacciarsi sul fondo del vicino; vedute o prospetti, quando permettono di affacciarsi e di guardare di fronte, obliquamente o lateralmente.”
Reference was made to a previous decision of the Civil Court (3) wherein it was confirmed that the owner of the back yard, being the owner of the airspace overlying the said yard, has every right to develop the said yard as long as the roof of the new development is below the windows of the dominant tenement/s. In so doing, the rights of enjoyment of the said easement by the dominant tenement are not being restricted since the right of prospect is limited to what the owner of the dominant tenement can see if he looks out of the window (horizontally) and not to what he can see beneath (4).
It was also maintained that this principle should be upheld as long as the owner of the servient tenement does not hinder in some other manner the easement enjoyed by the dominant tenement (such as through the hanging of cloths on the roof of the new development) (5).
One may argue that the presence of a balcony (as against a window) may lead to a different assessment. Yet the Court of Appeal referred to a decision of the Civil Court (6) and to Italian jurists wherein it was held that there is no such a distinction between a balcony and a window. Since the dominant tenement did not suffer any reduction in his view, air and light intake, then there is no breach of his rights. Any other decision would breach the rights of the owner of the servient tenement (whose rights are already burdened by the easement to freely enjoy his property) (7)
The Court also analysed a further complaint by the owner of the dominant tenement, namely that his property is now exposed to inconvenience and lack of security and privacy since the balcony is easily accessible from the roof of the underlying tenement. The Court maintained that one has to analyse two distinct (and at times conflicting) rights – that of the owner to use and enjoy his property, and that of the owner of the dominant tenement to freely enjoy his easement. Reference was made to a decision of the Civil Court (8) wherein it was maintained that any doubt should go in favour of the owner of the servient tenement.
As such, the Court would analyse, for example, what sort of access the servient tenement would have to the roof of the new development to ensure that the rights of the dominant tenement are not impaired or that he is not exposed to other hindrances. The fact that no such permanent means of access existed lead the Court to further confirm the rights of the owner of the servient tenement. Yet the Court still felt that it should order (or recommend) that the owners of the servient tenement should be prudent enough to inform the owners of the dominant tenement beforehand should they need to access such a roof to carry our maintenance.
(1) Art. 400 Chapter 16 Laws of Malta
(2) Falzon vs Aquilina et. (Case no. 872/10 decided on the 18th July 2018)
(3) Vella vs. Galea (decided on the 9th October 2003)
(4) Also refer to Chetcuti vs. Agius (Court of Appeal decided on the 28th February 1997)
(5) Vide Chetcuti vs. Agius supra and also Sciberras vs. Sciberras (Civil Court 14th February 2007)
(6) Stilon Depiro vs. Axisa (decided on the 24th January 1958)
(7) Vella vs. Galea (Civil Court decided on the 9th October 2003) and Chetcuti vs. Agius (Court of Appeal decided on the 28th February 1997)
(8) Gauci vs. Attard decided on the 9th December 2002