Last week we referred to a case decided by Judge Aaron Bugeja, where the Civil Court had to determine the rights of use of a roof of a penthouse.
In its reasoning the court referred to prior jurisprudence on whether the right of use of a roof, by apartments underlying the penthouse, constitutes a servitude. Jurisprudence established that a right of use of a roof is a right of servitude of use. Such a servitude is described by Maltese courts as a praedial servitude, which means a legal right that allows one property to use or burden a neighbouring property.
An assessment by the court as to whether a servitude of use exists in favour of an underlying apartment for the use of a penthouse roof has to follow the legal doctrine which applies to praedial servitudes. Such doctrine requires that the interpretation of such servitude be done in a narrow manner since a servitude is an exception to the legal maxim that an owner has the maximum and free enjoyment of their property. This leads to the second arm of the doctrine—where there is any doubt on the servitude, it should militate in favour of the possessor of the servient tenement, in this case the penthouse owner.
Another pertinent principle in establishing the existence of a praedial servitude, in the case of the right of use of the roof of the penthouse, is that where a servitude is continuous and not apparent, it can only be created by title. This is dictated by the Civil Code under Article 469 (1) and it means there must be a deed of acquisition which establishes such servitude. On the basis of this doctrine, it is essential that the court verifies what is stated in the deeds of acquisition.
By law the servient tenement cannot do anything which creates an obstacle to the exercise of such servitude. The servient tenement cannot change the position where the servitude is to be exercised. In this case there was a plan attached to the deed of acquisition which established in which area of the roof the underlying apartment belonging to the respondent could exercise his right of use to install the water tank and the air condition compressors.
Maltese case law also interpreted that any reference to a right of use of a roof in a deed of acquisition entails an actual right of use and not simply a right of access. Where the right of use is not described in detail in a contract, it is to be given a broad interpretation. This does not mean that the beneficiary of a right of use of a roof can do whatever pleases them. The good neighbour principle has to be respected. For example, the area of the roof over which there is a right of use cannot be used as a toilet for pets. The use has to be normal and reasonable and does not disturb the right of use of the other owners. The court describes the use as having to be within a right measure (qies ġust).
Applying this yardstick to air conditioning compressors and whether they may be installed on a roof by an underlying apartment benefitting from a right of use servitude, the Maltese courts have consistently concluded that such units are permissible. Similarly, Maltese courts assessing whether a right of use of a roof allows the hanging of clothes or the construction of a washroom have determined both are permissible as they fall within the ‘right measure’ yardstick.
Maltese case law also covered cases where an owner did not exercise the right of use of a roof which the property benefitted from, but a subsequent owner started exercising such right to hang clothes. The court found that the subsequent user had every right to do so as long as the ‘right measure’ principle was observed.
The only limitation on the right of use of a roof would therefore be where the use would be unreasonable and cause inconvenience to the owner of the roof or to the other owners who also enjoy a right of use.
This article may also be accessed on MaltaToday.
