The Court must be satisfied that the minority of co-owners of a property will not be prejudiced with the sale of their property by the majority of the co-owners. This was held in Raymond Zisa et -v- Dr Joseph P Bonnici et noe, decided by the First Hall of the Civil Court on 1 February 2023. The Court was presided over by Judge Anna Felice.
The Plaintiffs filed an application explaining that the parties to the case are co-owners of a property in Marsa. The Plaintiffs own 92.7% of the property; the Defendants own the balance, 3.6%. The Plaintiffs would like to sell the property and identified a buyer for €100,000. This sale is to the benefit of all the Parties to the case, and therefore, they would like to proceed with the sale in terms of Article 495A of the Civil Code.
Dr Bonnici was acting as a Curator, since the two other Defendants cannot be found.
The Court held that Article 495A of the Civil Court allows the Court to sell the property when the majority of the co-owners want to sell and the minority does not want to sell capriciously. The Article states:
(1) Except in cases of condominium or necessary community of property, where co-ownership has lasted for more than three years, and none of the owners has instituted an action before a court or other tribunal for the partition of the property held in common, and the co-owners fail to agree with regard to the sale of any particular property, the Court shall if it is satisfied that none of the dissident co-owners are seriously prejudiced thereby, authorise the sale in accordance with the wish of the majority of co-owners regard being had to the value of the shares held by each co-owner.
(2) The request to the Court shall be made by application which shall be accompanied by a declaration of the owners who agree to the sale as well as a prospectus showing the number and value of the shares held by each of them as well as the terms and conditions under which the sale is to take place. The application shall also indicate the date on which the co-ownership arose and the circumstances thereof.
A caselaw has established the principles of law when interpreting this Article. In Aloysius Farrugia -v- Dr Josette Sultana et noe decided on 31 May 2017, the Court held that the law lays down a simple procedure for property held in common may be sold. Article 495(5) allows the dissenting co-owners to object, but they have to show that they will suffer prejudice.
In another judgement, David Abela noe -v- Dr Simon Micallef Stafrace decided on 20 June 2011, held that the law provides for a forced sale and, therefore, places parameters in order to avoid abuse. A Court of Appeal decided on 27 January 2017 in Richard Vella Laurenti -v- John Vella Laurenti, interpreted the term prejudice to mean “manifestly unfair”.
In this application, the Court looked at the conditions for the sale of the property and that the price seemed to be advantageous for all. The promise of a sale agreement is standard, and there are no conditions that put any of the parties at a disadvantage. Furthermore, the Court was satisfied with the title. This was pointed out in Joseph Giuliano et -v- Avukat Dr Victor Bugeja et noe; decided on 30 June 2020.
The Court then moved to order the sale of the property as requested by the Plaintiffs.
Av. Malcolm Mifsud
The article may also be accessed on Malta Today.
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