Constitutional Law

A servitude (or an easement) easement is a right established for the advantage of a property over another property belonging to another person, for the purpose of making use of such other property or of restraining the owner from the free use of his property. Servitudes are created either my law, or by an act of a person. Examples of servitudes are a right of passage, the obligation to maintain certain distances when one is developing his own property, and a right of one person to take water from a well situated on another person’s property.

According to law, in the absence of a mark or other proof to the contrary, a wall which serves to separate two buildings is presumed to be common up to the top, and, where such buildings have not the same height, up to one metre and eighty centimetres from the point at which the difference in height begins. Where a wall separates two courtyards, gardens, and fields, it is also presumed to be common. Where there is a building on one side, and a courtyard, garden or field on the other side, the wall is presumed to belong entirely to the owner of the building.

The law provides for rules to be observed when one intends to open windows or other apertures overlooking a neighbouring yard of property. This law is enforced through three rules. The first one is that there is a presumption at law that he who owns a land owns the airspace above it. This usually means that the owner of a backyard in a block of flats is presumed to own the airspace above it, meaning that the backwall of the block of flats facing the airspace above the backyard becomes ‘the party-wall’ between the flats and that airspace. Here is where the two next rules take importance: article 425 of the Civil Code states that it shall not be lawful for one of the neighbours without the consent of the other to make in the party-wall any window or other opening. This is further reinforced by article 443(1), which stats that it shall not be lawful for the owner of any building to open windows at a distance of less than seventy-six centimetres from the party-wall.

Today, many contracts of purchase state in clear words whether the airspace is being transferred with the property. However, contracts done in the past usually remained silent, since an airspace was not necessarily considered to be valuable. In such cases, article 323 of the Civil Code comes to the rescue. It says that 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, save some exceptions according to law. At law, we known this principle as ‘cuius est solum, eius est usque ad coelum et ad inferos’. This presumption is rebuttable only through strong evidence to the contrary.

Usufruct is the real right to enjoy things of which another has the ownership, subject to the obligation of preserving their substance with regard both to matter and to form. The usufructuary has the right to use the thing, and to collect its fruits (which in the case of a built property, may consist in collecting rent).

Where two or more parties own a property together, each of the co-owners (independently of the share they hold) may use the property held in common, provided it is used according to its purpose, and as long as the use made is not against the interest of the co-owners, or done in a way as to prevent the other co-owners from using the property held in common. The co-owners have to share the expenses necessary for the maintenance of the property.

There may be situations where the owner of a property discovers that someone else has taken possession of the property, and is now claiming that it is his. The law provides for a solution to those in this situations, and this through the action known as the ‘actio rei vindicatoria’.

Under article 495A of the Civil Code, the law provides for a mechanism whereby the majority owners of a property held commonly with others, may force the minority to sell their share of the property together with the majority to a third party. This is done through an application in court; the court will then assess whether or not the dissident minority will suffer serious prejudice if the sale goes through. Once the approval of the court is given, then the sale can be made, whether or not the dissident minority co-owners appear on the final contract of sale.

Maltese Rent Law cannot be found gathered in one chapter of laws; it is instead spreaded in different laws, making it quite a task to collect each and every law that has to do with rent. The Civil Code, Chapter 16 of the Laws of Malta, contains the general rules of the law of lease, including the rights and obligations of both parties in a contract of lease. Chapter 69 of the Laws of Malta, the Reletting of Urban Property (Regulation) Ordinance, governs the old protected leases; however it also provides rules for the new mechanism (brought into force on 1 June 2021) by which a property owner may request for an increase in lease up to an equivalent of 2% of the value of the property. Then, Chapter 158 regulates those leases which were a product of a converted title of temporary emphyteusis. On the other hand, Chapter 199 (Agricultural Leases (Reletting) Act) regulates the reletting of agricultural land, while the recent Chapter 604 provides laws regulating ‘new’ leases, the duty of registration of leases with the Housing Authority, and established the Adjudicating Panel for Private Residential Leases.

The owner of the topmost roof in fig. 1 is bound by law to raise the party wall to 1.80m above the level of the roof (or if it is a terrace, from its footing); this ċinta is the opramorta, and by law, if the owner of the roof has access thereto, he is obliged to raise the external wall to this height. The idea is that with an external wall of such a height, the owner of the accessible roof would be unable to pry upon the neighbour on the ground floor, that is the neighbour with whom he shares the party-wall.

In praedial servitudes, we distinguish between what is a dominant tenement and what a servient tenement. Essentially, the dominant tenement is the tenement enjoying a servitude on someone else's property (such as a right of way), whilst the servient tenement is the one suffering the servitude. Servitudes are hence a weight on absolute ownership generally said to be held by the servient tenement.

In 2018 and in 2021, two laws were brought into force, both allowing the owners of a property under a protected old lease to request an increase in the rent due. On the owner’s request to the Rent Regulation Boasrd, the tenant is subjected to a means test, and those who pass this test shall have the right to continue occupying the property, for a rent of not more than the equivalent of two percent of the market value of the property, part of which will be subsidised by the State through the Housing Authority. The 2% mentioned in the law is not a fixed number, but a threshold – a maximum. Therefore, the Rent Regulation Board is free to determine a yield less than that, obviously subject to a number of considerations that the law obliges the Board to make.

The 'actio finium regondorum' is action at law whereby an owner resorts to the court to obtain an order against his neighbour to fix, at joint expense, by visible and permanent marks, the boundaries of their adjoining tenements. The idea behind this lawsuit is to confirm, where the is doubt, where one's property finishes and where his neighbour's starts. It is an action to regulate boundaries, and establish the perimeters of a property where there is a dispute.

Emphyteusis is a contract whereby one of the contracting parties grants to the other, in perpetuity or for a time, a tenement for a stated yearly rent or ground-rent which the latter binds himself to pay to the former, either in money or in kind, as an acknowledgment of the tenure. An emphyteusis for a particular period is known as a 'temporary emphyteusis', on the expiration of which the property must be returned to the owner together with its improvements. A perpetual emphyteusis holds a special place in law, for it can be redeemed by means of a public deed or a schedule of redemption filed in court.

A perpetual ground-rent can be redeemed in two manners - either by means of a public deed, or through a schedule of redemption filed in court. When redeeming a non-revisable perpetual ground-rent, one has to pay the ground-rent capitalised at 5% (that, is the ground-rent payable X 20 years), unless otherwise agreed to in the original emphyteutical concession. Where the original contract provides that the ground-rent may be revised at a specified time or on the happening of a specified condition, the ground-rent may only be redeemed within the first year from the date of any such revision or the happening of such condition. In these cases, the amount payable shall not be calculated on the basis of 5%, but be equivalent to the amount of ground-rent so revised capitalised at the average rate of interests payable by a commercial bank on deposits of a fixed nature at the time of the redemption. The redemption of the ground-rent payable does not extinguish the obligations entered into in the original concession.