The First Hall of the Civil Court decided on 26 April, 2017 that any property used under or above an immovable property belongs to the owner. The judgement was delivered by Mr Justice Joseph Azzopardi in John Cachia and his wife Maria Cachia v Emmdor Limited, Emmanuel Vassallo and Mary Vassallo.
In their application the Cachias said that they are the owners of a maisonette with a garage, marked D. In Qawra. On the other hand the defendants own the maisonette above the Cachias’, together with a garage marked C. When the block was originally built a floor under the Cachias’ maisonette was blocked off and sealed. This was done due to the excavation that took place when the buildings were being built. In 2002 the plaintiff decided to make use of the land under the maisonette, by removing some bricks to allow access.
There he noticed that his next door neighbour had constructed a very small access also, between the defendants’ garage and the sealed off area. The plaintiff blocked off their area again and approached the defendants, who refused to remove their access to the defendants’ property. The plaintiffs asked the court declare that the land under their maisonette is theirs and to define the boundaries of the two properties and order the defendants to vacate that part of the property.
The defendants filed a statement of defence arguing that the plaintiff must prove their title over this disputed area, since the contract when the plaintiffs purchased the place did not mention this area.
The Court analysed the contracts and the other evidence presented before it. The Court had also nominated an architect as its expert, who presented a report.
The Court quoted Article 323 of the Civil Code:
“Whosoever has the ownership of the land, has also that of the space above it, and of everything on or over or under the surface; he may make upon his land any construction or plantation, and, under it, any work or excavation, and draw therefrom any products which they may yield, saving, however, the provisions relating to Praedial Easements under Title IV of Part I of Book Second of this Code and any other provision of law in regard to fortifications or other works of defence.”
The Court also quoted from a previous judgement Francis Portelli -v- Stanislaw Pisani et decided on 24 September, 2004, which held that the owner of land was also the owner of the airspace and also underground. Therefore, once the property is transferred to a third party, the airspace and the underground property is also transferred, unless the contract imposes a limitation. If there is no exclusion in the contract, the law allows a presumption that whatever is found above or under the land is of the owner.
The court-appointed expert confirmed that the defendants placed a door which leads to under the plaintiff’s garage and was constructed after the property was built. The expert pointed at what the defendant, Emanuel Vassallo said in his affidavit that confirmed that the door had been made.
The plaintiffs and their son confirmed that in 2002, they were carrying out works in the garage and when they opened part of the wall, they saw that the defendant was occupying part of the area under the plaintiffs’ garage. The Court noted that the passage did not constitute a servitude of the plaintiffs’ property.
The Court then moved by rejecting the defendants’ pleas and confirming the area as belonging to the plaintiff and ordered the defendants to vacate the area within three months.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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