Article 495A is intended to ensure that when a majority of co-owners believe that the sale of a co-owned property is advantageous, but the minority of the co-owners do not authorise the sale, then the courts can intervene and order that the property be sold.
The particular elements of this section in the Civil Code were explained by Honourable Judge Mark Chetcuti in the case of Abela Carmelo Et vs Abela Fiorella, heard on the 30th of April 2018.
The Court heard the facts of the case explained by the plaintiffs where it was explained that a property bequeathed by the deceased Tereza Abela was inherited by her ten descendants in 1986, all of whom became co-owners of the property. One of the descendants Alfred Abela had passed away in 2002, and left his wife, Fiorella Abela, as his universal heir. Ms Fiorella Abela, the defendant, lived in England and was represented in the Court by the curators of the property.
The plaintiffs, who were nine out of the ten co-owners, pleaded with the Court to allow for the sale of the property without the defendant’s approval. It was explained that the prospective buyer of the house had signed a promise of sale agreement and that the house would be sold for a very profitable amount of €150,000. There were no counterclaims made, since the representatives of the defendant claimed that they had no means of communicating directly with her and thus could not make an account for her wishes.
The Court proceeded to explain that the procedure for a Court decree under Article 495A was not available to any co-owner who wishes to sell the property despite the disagreement of the others. It was held that in order for such a claim to be considered, five requisites had to be cumulatively fulfilled. The Court explained how first of all, the co-owners must have had shared ownership of the property for at least ten years. It is, however, to be noted that due to 2016 amendments, this period of time has been lowered to three years.
The second condition is that during those three years, none of the co-owners had instituted an action before a court or other tribunal for the partition of the property held in common, and therefore, the property is not pending any action nor has it been the subject of a judicial action for partition. Thirdly, there must be disagreement between co-owners on whether or not the property should be sold. The fourth condition is that the majority of the total number of co-owners are in agreement on the sale of the property. In this case 9/10 of the co-owners agreed on the sale and therefore this condition was fulfilled by the plaintiffs.
The final condition expounded by the Court was that it must be satisfied that the dissident co-owners are not seriously prejudiced by the sale of the property. In this case, the Court appointed an expert architect who confirmed that the property was worth €140,000. This meant that all of the co-owners would be in a highly advantaged position if they went through with the sale. In commenting on the promise of sale agreement, the Court held that the presence of such an agreement was neither required for the institution of a claim under Article 495A, nor was it a guarantee of a successful action.
Nevertheless, the Court stated that it was satisfied that in this particular case all the requisites were satisfied. It held that the property was to be sold in accordance with the plaintiffs’ requests.
Av. Malcolm Mifsud
Partner
Mifsud and Mifsud Advocates
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