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The First Hall of the Civil Courts held that all co-owners have a right to the key of common owned property, even though it may be the residence of some of them. This was held in a judgement delivered by Mr Justice Grazio Mercieca in Annuziata Galea, Georgina Caruana, Nazzarena Grima, John Galea, Grazio Caruana and Joseph Grima -v- Carmen sive Maria Borg and Emmanuel Borg. The judgement was delivered on 4 June 2019.

In their application, the plaintiff asked the court to declare that they are co-owners of a property in St Paul’s Bay and that the defendant should be ordered to hand over the keys of this property.

The defendants defended the case by filing a statement of defence stating that they are using the property according to an agreement they had with their parents to make use of the property without payment. Both parties are brothers and sisters.

The evidence showed that the parties’ parents had three wills. In the July 2011 will, the property was left to Emmanuel Borg, however, the mother renounced the inheritance in favour of his 11 children. In September 2011 the will was changed to give Emmanuel Borg half of the undivided property. When the parents died the defendants still lived with their parents and it is still their residence until today. The defendant is not allowing access to the plaintiffs.

The Court dealt first with whether there was an agreement between the defendant and the parents to use the property without any payment. The Court analysed the facts of the case to see whether there existed a commodatum or loan for use in terms of Article 1824 of the Civil Code. A loan for use is when someone gives a moveable or immoveable thing to another to make use of it for some time or for a particular use and to be bound to return.

This is different from usufruct and this does not constitute a real right, since the loan for use is given for temporary use, which is a personal right. This is a loan for use not as a loan for consumption. Mr Justice Mercieca gave the example of when a book is given to be read and it is to be returned. If money is lent, the money can be spent therefore, consumed, with an obligation that an equivalent amount is returned.

Article 1824 of the Civil Code states: “Commodatum or loan for use, is a contract whereby one of the parties delivers a thing to the other, to be used by him, gratuitously, for a specified time or purpose, subject to the obligation of the borrower to restore the thing itself.” From this article of law there are two characteristics, the first being enjoyment and the second is to be used for a time or for a specific use. The law does not speak of a definite time and therefore it may be given for the lifetime of the person given the loan of use.

The Court held that it was sceptical that there existed any agreement between the defendants and their parents on the use of the property.

The Court held that when the defendants replied to a judicial letter the agreement was not mentioned. Furthermore, none of the witnesses mentioned this agreement. Another reason is that the mother of the parties renounced to the inheritance of her husband, having only her half of the property. If she wanted the defendants to use the property she would not have renounced the inheritance. The Court held that even if there was an agreement, it could not have been constituted as a loan for use, since no time period was determined. According to Carmen Borg her parents accepted that she lives with them because she took care of them.

A previous judgement of the Court of Appeal Antonio Vassallo vs Edward Vassallo of 18th Mary 1964 shows it is normal for the children and parents to live together as one family but this is not a contract of loan for use, since the elements do not exist in such a situation.

As to the key of the property, the Court agrees with the plaintiffs’ request. The defendants argued that if the plaintiffs would have a key there would be no privacy. However, Mr. Justice Mercieca said that this should have been listed as one of the pleas and it was not.

The Court then moved to uphold the plaintiffs’ request and declare them as a co-owner and ordered that they would have copies of the keys.

Av. Malcolm Mifsud


Mifsud & Mifsud Advocates

This article may also be accessed on Malta Today.  

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