The servitudes mentioned in the contract are not to be added on if not agreed to, according to a judgement delivered by Judge Anna Felice on 21 May 2025 in Cassar and Cooper (Holdings) Limited vs Allwares Limited and Leonard sive Leo Cassar.
The Plaintiff Company explained in its application that it owned a shop in a block of apartments in Sliema and was also a co-owner of the shafts in the same block. The shafts provide light and air. The Defendants created new servitudes by opening new windows overlooking the shafts and installing new drainage pipes. The Plaintiff Company asked the court to declare that it is the co-owner of the shafts as described in a contract of May 1974. The company also asked the court to declare the new windows and new pipes illegal and order their removal.
In their statement of defence, the Defendants held that they acted within the law.
The Court pointed out that the Defendant Company was subject to another court action, The Village Gossip Limited et vs Allwares Limited et, on the same grounds. In this case two judgements were delivered. The first held that Leo Cassar should not have been a party to the case. Any action should be between owners of properties and Leo Cassar is not the owner of the apartment in question but a shareholder of Allwares Limited.
The Court agreed with the 2017 judgement and held that Leo Cassar should not be a party to the case.
On 3 May 2023, the First Hall of the Civil Courts delivered another judgement in The Village Gossip Limited et vs Allwares Limited et, on the merits of the case.
The court held that the contract entered into by The Village Gossip when it purchased the property stated that the basement enjoys, together with other shops and apartments, the internal shafts and drains intended for common use. Here the court held that the Plaintiff Company was not the owner of the shaft since the contract described the use of the shaft and not its ownership.
With regard to the additional windows and pipes, the Defendants did not challenge this fact. From the court appointed architect’s report there are two pipe systems—one for rain water and another for drainage.
The Court had gone through the contract of the owners of the properties prior to the Parties purchasing these properties. It results that there existed the servitude for pipes and windows.
The Court held that the Plaintiff Company purchased only the use of the shaft and therefore, cannot claim that it is the owner of the shaft. Therefore, the action cannot be successful because the elements for this type of action did not exist.
The judgement was then appealed and on 15 October 2024, the Appeals Court gave its ruling. It quoted the judgement Vella vs Vella, in which the Plaintiff had a right of use and habitation after a separation from her husband. She filed an action against neighbours because they did not respect the distances established by the law. The Appeals Court referred to Article 393 of the Civil Code, which states that right of habitation is a real right. As such the party enjoying the property has a right to file an actio negatoria.
The Court of Appeal overturned the judgement by stating that the Plaintiff Company did not need to prove that it was the absolute owner of the shaft as long as the party filing the action can prove that he or she has a valid title over the property.
The Court of Appeal held that it did not agree with the Defendant that it had a right to fix pipes in terms of Article 104(2) of the Code of Police Laws. The Court held that the pipes could have been placed in alternative areas.
As such the Court of Appeal ordered the pipes be removed and the windows closed.
Av. Malcolm Mifsud
Founding Partner
Mifsud & Mifsud Advocates
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