Since water leakages take time to emerge the time-bar period of two years does not start when the leakage took place. This was held in a judgement delivered on 4 June 2025 in Frank Cristiano et vs Kevin Farrugia and George Farrugia & Sons Limited, by Judge Anna Felice.
The Plaintiffs explained in their sworn application that they own an apartment and a garage in Attard. The garage is underlying the property of the Defendants. In January 2016 water started entering the Plaintiffs’ property from that of the Defendant, which caused substantial damage. The Defendants were called upon to remedy the situation and to pay for the damages, but they were ignored. The Plaintiffs asked the court to find the Defendants responsible and to order them to pay for the damages.
The Defendants disagreed and filed a statement of defence. It held that Kevin Farrugia is not personally responsible, since he is not the owner. The Defendants held that the Plaintiffs must prove that the damage occurred from the company’s property.
The Court then appointed an architect as its expert. It was the expert who heard the witnesses. The Plaintiff Frank Cristiano testified that he had purchased the property in 2006. In 2016 he went to the garage and found water seeping through the roof. The next day, workmen of the Defendant company saw the water in the garage and promised to fix the problem. This was confirmed by Cristiano’s wife. The Plaintiff’s architects testified that the water was coming from the property above the garage.
The Defendant, Kevin Farrugia, testified that the first time he learned about the damage was from the judicial letter sent to him. He sent an architect, who found a lot of humidity and damp walls. There were no leaks in the pipes.
The Plaintiff’s architects held that the ceiling and the walls of the garage were damp. They suggested that this may be treated.
The Defendant’s architects reported that the garage’s roof had no pipes passing above it. He concluded that the garages suffered from lack of ventilation. This caused deterioration of the concrete. The Court expert disagreed with this and held that there was a water leak, however, this was not the only cause of damage. The expert said works had to be carried out on the roof of the garages with a cost of €3,540.
The Court dealt with the plea that Kevin Farrugia should not have been sued personally, since the property on top of the garages was owned by George Farrugia & Sons Limited. The Court agreed with this.
The Court dealt also with the issue of time-barring in terms of Article 2153 of the Civil Code. This was not formally presented but the Plaintiff said that this damage occurred years before, but did not know when precisely. However, later he did mention five years. In the note of submission, the Plaintiff argued that prescription is interrupted every time the damage recurs. The Defendant rebutted by quoting the date of the first report 27 March 2016, while the sworn application was filed on 15 May 2018.
Therefore, they argued, the action was time barred because two years had passed. On this point the Court quoted the judgement, Carmel sive Charles Aquilina vs Alan Alden et decided by the Court of Appeal on 27 June 2014, which dealt with an identical situation. The Court of Appeal said that this sort of damage takes time to be noticed. The damage is not established at one moment. This was the case in this particular case and therefore, the court did not accept this plea.
As to the merits of the case, the Court held that in terms of the judgement, Joseph Calleja noe vs John Mifsud, decided by the Court of Appeal on 19 November 2001, a court expert’s testimony is evidence that the court must take into consideration. According to Article 681 of the Code of Organisation and Civil Procedure, the court is not bound by the conclusions of the court-appointed expert.
However, the court should not disregard this opinion easily. In this case, the Court held that there was no reason to doubt the court expert’s opinion. However, it did not agree that it should be bound by a specific amount for damages. The Plaintiff did not ask for a specific sum for the works to be carried out. They asked that the Court allow them to carry out the works at their expense. The Court therefore, ordered that the Plaintiff carry out remedial works at the expense of the Defendant company.
Av. Malcolm Mifsud
Founding Partner
Mifsud & Mifsud Advocates
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