The development of airspaces is a recurring subject, especially during the last couple of years. Owners of airspaces delve into legal dilemmas and sift through contracts, some of which quite historic, to understand how they can design the additional building above the said airspace. We have already looked into matters involving the right of use of the said airspace and the right to open apertures abutting onto back yards and internal yards. A recent decision of the Court of Appeal[1] did confirm the same basic principles in relation to vertical ownership (as against horizontal ownership) of airspaces. Yet, the Court made some observations which merit further attention.
Vertical Ownership and Horizontal Ownership:
Under Maltese Law, the principle (presumption) remains that whoever owns land owns the airspace above that land[2], unless it is otherwise stated in the contracts defining the title of same. Any person arguing contrary to the presumption at law must produce conclusive and unequivocal evidence[3]. In this case, the fact that the groundfloor tenement (which had a backyard, internal yard and front garden) was sold exclusive of its airspace, was still not considered by the Court as sufficient evidence to prove that the airspace above the backyard, internal yard and front garden was excluded from the sale.
Walls abutting onto back yards, internal yards and front garden:
The Court maintained that all such walls, from the floor above the groundfloor upwards, are to be considered as party walls. This is a very important consideration since the labelling of such walls as party walls, renders them subject to the rules contained in the Civil Code regulating party walls. As such:
- The main rule remains that no apertures may be opened in a dividing wall unless this is done with the consent of the other owner[4]. Furthermore, the provisions of Article 426 of the Civil Code which empower owners to open apertures and construct protruding balconies in façade walls, do not apply, when such apertures or balconies open onto front gardens[5].
- By inference, the other provisions of the Civil Code regulating the upkeep and the rendering of common of such walls and the corresponding compensation rules likewise apply.
Apertures:
If the owner of the airspace does not own any of the airspace over the yards and front garden, his rights to open apertures must result from the deed/s establishing title which must clearly grant specific servitudes. The same rules already explained in a previous contribution on the matter still apply and namely that in as much as the owner of the property suffering the servitude may not limit the enjoyment of the servitude, the person enjoying the servitude may not further aggravate the position of the person suffering the servitude. The Court held that the owner of the tenement who already enjoys windows that overlook the yard of the groundfloor tenement retains the right in his favour as long as the size of the said windows is not increased[6]. Furthermore, if the owner of the airspace has the right to develop the airspace, such an owner must create terraces of his own over the airspace and open apertures onto those terraces. Very often, the question arises as to what distance must be retained between the said windows and the extent of the terrace. Having established that the wall is a dividing wall, the Court concluded that these windows must be at a distance of at least 76cm from the said wall[7]. Furthermore, the said terrace must be enclosed by the erection of a solid wall above and in line with the exiting wall. This wall will be considered as an “opramorta”, and hence, the owner of the groundfloor tenement may demand that this wall rises to at least 180cm from the floor level of the terrace.
In a recent judgement[8], the Court of Appeal held that even when the ownership of the airspace is horizontal (namely the owner of the ground floor tenement does not own the airspace above the gardens, yards or the front garden), no new windows (unless they are with opaque glass and cannot open), or balconies, can be built in the overlying properties, since these would otherwise cause introspection over the groundfloor garden, yard or front garden.
Drains:
The Courts have now, on various occasions[9], held that the underlying tenement cannot object to the extension of the drainage infrastructure to enable the said drains to be used by the newly built overlying properties. This in accordance with the provisions of Article 104(2) of Chapter 10 of the Laws of Malta.
[1] Zammit et vs. Tabone (12h February 2018).
[2] Article 323 of Chapter 16 of the Laws of Malta.
[3] Denise Ciangura et vs Carol Galea et, First Hall Civil Court, (6th July2005).
[4] Article 425 of Chapter 16.
[5] Refer to case 218/2021 as decided by the Court of Appeal on the 15/6/2023.
[6] In this case two windows that already existed where altered through the removal of a middle column that divided the two windows hence ending up with one large window which, through the removal of the pillar, was now bigger than the two windows. The Court maintained that this was contrary to the provisions of the Civil Code.
[7] Article 443 of Chapter 16.
[8] Case 701/10 as decided by the Court of Appeal on the 26/10/2022.
[9] Case 1105/21 in which reference was also made to Case 148/2020.