Opening Windows: When is it Legal?

The opening of new windows in a party-wall (‘hajt diviżorju’) is a frequent cause of neighbourly disputes, particularly when it comes to the redevelopment of overlying properties. Under Maltese law, a person cannot open a window in the party-wall, being the wall that separates two adjoining properties, unless he enjoys a right over the neighbouring property (which is known as a servitude / servitù). In the absence of such a servitude, the opening must be receded to a distance of not less than seventy-six centimetres (76 cm) from the party-wall and this in accordance to Article 443 of the Maltese Civil Code (Chapter 16 of the Laws of Malta).

What classifies as a ‘window’ under Maltese law?

The law does not define what constitutes a window, yet court decisions have shed some light on this. Fixed apertures, for instance, have been classified as windows even when placed above eye level. In contrast, small openings designed solely for ventilation, commonly referred to as air vents or “rewwieha,” are not classified as windows and do not create a servitude. In determining the nature of an opening, courts assess its purpose, size and position.

Where and When the Distance Applies

Unless one enjoys a servitude, the 76 cm legal distance must be respected at all times, regardless of the level of the tenements or whether they are side by side or overlying each other such as maisonettes. Even parapet walls are treated as extensions of dividing walls. Maltese case law is clear that Article 443 of Chapter 16 applies equally to maisonettes, apartments and traditional dwellings.

Courts have also confirmed that this distance applies independently of whether actual overlooking occurs. Although some judgements have allowed apertures at a smaller distance where there was no overlooking, more recent decisions of the Court of Appeal have reverted to a strict interpretation.

Exceptions

Exceptions to the 76 cm distance in the absence of a servitude do exist, but they are limited and must be clearly established. These include obtaining your neighbour’s consent or else prescription. Consent to open windows within the 76 cm legal distance must be granted through a public deed signed between the owners of the neighbouring tenements. To acquire the servitude through prescription, the window has to have existed openly, peacefully and uninterruptedly for thirty (30) years.

The concept of good neighbourliness, commonly known as buon vicinato does not amount to a renunciation of rights or consent. Even decades of tolerance do not necessarily extinguish a neighbour’s right to challenge an unlawfully opened window.

Redevelopment and Existing Servitudes

Where a window legally exists and the property is demolished and rebuilt, the servitude remains intact, but the new window must remain in the same position and of the same size. Opening additional windows would generally be considered an aggravation of the servitude already enjoyed and would therefore be unlawful unless authorised by contract.

Planning Permits and Third-Party Rights

It is important to keep in mind that a planning permit issued by the planning authority does not override this 76 cm rule. Even if a permit is issued to open windows in the party-wall or within 76 cm of the party-wall, this does not automatically mean that those windows comply with civil law. This means that a property owner may hold a valid planning permit to open new windows, and still face legal action from neighbours seeking to protect their rights by opposing the opening of those new windows.

Therefore, it is of utmost importance to understand one’s obligations under Article 443 of Chapter 16 and to act promptly if the required legal distance of 76 cm is not respected.

Dr Samira Briffa

Understanding the Condominium Act

The Condominium Act (Chapter 398 of the Laws of Malta) is the primary law that regulates how condominiums are administered.

What is a Condominium?

The law defines a condominium as a building or group of buildings where two or more people jointly own, use, or enjoy certain shared areas, called “common parts,” while each person separately owns their individual unit within the same building or complex.

In practical terms, the most common form of a condominium is a block of apartments, where each unit (flat) is individually owned, yet the common parts are co-owned by all the individual owners (collectively referred to as the condomini) in undivided shares.

The undivided shares in the common parts are presumed to be equally distributed among the condomini. For instance, in a block comprising five apartments, each apartment owner is presumed to hold a one-fifth (1/5) share in the common parts, unless otherwise stated in the contracts of sale.

Which are the “Common Parts”?

While most contracts of sale nowadays clearly list which areas of the block are to be considered common, the Condominium Act provides a non-exhaustive list of what is presumed to be a common part, unless otherwise stated in the deed of sale. These include:

• The land upon which the building or complex is constructed

• The foundations and external walls, including any common dividing walls with neighbouring properties

• The roof, airspace, and shafts

• The entrance doors, staircases, stairwells, corridors, and lobbies

• Any courtyards, common gardens, or shared open spaces

• Lifts, wells, cisterns, drainage pipes, all  installations  for  water,  gas,  electricity, heating  and  similar  services  up  to  where  the  said installations branch off exclusively to serve an individual unit

• And generally, any other part of the property that is intended for shared use or enjoyment.

If a contract of sale expressly excludes certain parts from the common parts, or defines the common parts differently, such contractual provisions prevail over the law. It is common, for example, for the roof and airspace to be kept in private ownership and therefore be excluded from the common parts.

When to Appoint an Administrator?

If there are up to three unit owners, they may administer the condominium jointly or appoint an administrator. If there are more than three unit owners, the condomini must appoint an administrator. The administrator must be appointed during a meeting held between the same condomini and such administrator shall hold office for a period of two years unless otherwise agreed.

After appointing an administrator, the condominium must be registered with the Land Registry Agency. The administrator then serves as the legal representative of the condominium, authorised to handle all matters related to the common areas, including taking legal action, for example, to collect unpaid contributions from individual unit owners.

Among the key responsibilities of the administrator are handling the maintenance and repairs of the common parts, maintaining financial records, keeping a register of all condomini, managing the condominium’s funds, holding general meetings, and recording minutes of those meetings.

What is a General Meeting?

A general meeting includes all unit owners, and a quorum is required for this kind of meeting to proceed. This quorum requires the presence of condomini representing at least two-thirds (2/3) of all units.

If a quorum is not reached within thirty minutes of the scheduled start time, the meeting will be adjourned and reconvened either on the same day the following week at the same time and place, or on a different date, time, and location as specified in the notice by the administrator. Should a quorum still not be present within thirty minutes at the reconvened meeting, the present condomini at that meeting will be considered to constitute a valid quorum.

Decisions such as those which alter the aesthetics of the condominium or involve serious alterations to the common parts, require the unanimous consent of all condomini. Others, like carrying out other alterations to common parts, setting or amending condominium rules, require at least a 2/3 vote of units represented at the meeting. Decisions outside these critical categories, such as agreeing upon the cleaning services of the common parts, may be passed by simple majority.

The Crucial Role of General Meetings

During the general meetings, important decisions regarding the common areas may be made. These meetings hold wide-ranging powers, including but not limited to appointing or confirming the administrator and setting their fee, approving the annual expenditure budget and the administrator's accounts, and deciding on extraordinary repairs. Topics such as the installation of a lift, the allocation of its costs, structural façade works, and other related matters may also be discussed and voted upon.

Apportionment of Costs

The law states that the costs for the upkeep and repair of common areas are generally shared amongst the condomini based on the value of each unit, unless otherwise agreed. In practice, it is commonly agreed that costs are shared equally between the units. If certain parts benefit co-owners unequally, expenses are divided according to the extent of use each condominus can make of them. For areas like staircases, courtyards, or roofs that serve only part of the building, maintenance costs are to be borne solely by the benefiting parties.

A condominus may be exempted from contributing to certain expenses particularly if one does not intend to benefit from the alterations and/or innovations that allow for separate use. However, this exemption is not always straightforward or easily applied. The right to opt out is limited to cases where the changes are purely decorative in nature, or where the associated costs are excessively onerous, especially in light of the particular condition and prestige of the condominium.

Given that this exemption is subject to interpretation, it often gives rise to disputes. What qualifies as "excessively onerous" or "decorative" may differ. Additionally, even if a condominus claims no intention of using or benefiting from the innovation, the enhancement may still indirectly improve the overall value or appeal of the building, potentially benefiting all units regardless of direct use.

Therefore, the decision to contribute or not is rarely black and white, and legal guidance may be necessary to resolve disagreements and ensure a more harmonious condominium environment.

Dr Samira Briffa

Buying or Selling Property – the Promise of Sale (Konvenju)

If you are looking to buy or sell a property, the first step to formalise an agreement is to enter into a promise of sale (konvenju). This article will explain some of the main items one needs to be aware of before signing a promise of sale and during the period of validity of the promise of sale.

A promise of sale is a binding agreement whereby the buyer and seller undertake to enter into an actual deed of sale between themselves. A promise of sale is normally done in front of a Notary Public, and in order to be valid, it must be in writing, fulfill certain requirements and be registered with the Inland Revenue Department.

A simple verbal agreement between a buyer and seller, or a written agreement which does not fulfill the legal requirements, does not constitute a promise of sale and would not be legally enforceable. Either party would be free to change their mind about buying or selling, or about the terms and conditions.

Although the promise of sale is not the final deed of transfer, it is arguably more important than the actual transfer. This is due to the fact that the promise of sale is legally binding, and the terms and conditions agreed upon in the promise of sale cannot be changed on the final deed (unless both buyer and seller agree). The seller cannot, for example, unilaterally decide to raise the price of the property after signing the promise of sale, just because he forgot to consider the agency fee or taxes payable.

Some conditions to consider and be aware of when entering into a promise of sale are:

1. Whether the deposit is left with Notary or given directly to the sellers (or released in favour of the sellers upon the fulfillment of certain conditions)

2. Customarily, the deposit is given on account of the price. However, it may also be given as earnest (kapparra). In this latter case, the promise of sale is not enforceable, and therefore either party may back out of the promise of sale subject to forfeiture of the kapparra.

3. Whether the property is freehold or subject to a groundrent (whether a temporary or perpetual groundrent)

4. The description of the property, what rights it enjoys and whether it is subject to any burdens or constraints

5. Whether the property is built according to permit

6. Whether the property is being sold as is and with all guarantees according to law, and whether movables are also part of the sale

These are just some of the clauses that may need to be considered and may have important repercussions on the promise of sale and eventual final deed, for both the buyer and the seller.

By way of example, if the property is subject to a groundrent which needs to be redeemed in order to render the property freehold, but on the promise of sale the property is erroneously described as being freehold, the seller would be obliged to pay for this redemption in order to sell according to the conditions agreed in the promise of sale. However, if the property was correctly described in the promise of sale as being subject to the groundrent, the buyer would have to buy the property as subject to the groundrent or else to redeem at his expense.

Any conditions to which the promise of sale is subject, must be clearly disclosed in the promise of sale. Thus for example, if the buyer requires a bank loan in order to acquire or wants to acquire subject to obtaining a planning permit, these conditions must be stated. Conditions may also be included in favour of the seller, for example when the sale is subject to obtaining court authorisation for the sale. If such conditions are not stated in the promise of sale, then the parties cannot rely on them. Therefore if, for instance, the promise of sale is not subject to the buyer obtaining a bank loan, the buyer cannot then back out of the sale citing failure to obtain a bank loan.

The promise of sale will have a stated period of validity. A promise of sale is only valid and enforceable during its period of validity. Any action to either enforce the promise of sale (that is, to force the other party to appear on the final deed of sale) or to terminate the promise of sale due to the fault of the other party, must be taken prior to the expiry of the promise of sale. This action must be taken through court – normally a judicial letter is first sent, which has the legal effect of extending the promise of sale by 30 days, and then this would be followed up with a court case.

If a promise of sale is left to expire without taking judicial (court) action, the promise of sale simply falls through and loses its effect. The result is that the parties return to the ‘status quo ante’, and the deposit would be refundable to the buyer.

When buying or selling a property, legal advice may be required at all stages, even before marketing a property or negotiating the transfer. However, the promise of sale is the main starting point since it sets out the binding parameters for the eventual sale and therefore may significantly limit or broaden the eventual legal actions that may be taken in relation to the sale.

Dr Douglas Aquilina