Airspace development and third parties' rights

The Court of Appeal judgment in Joseph Muscat et vs S.C. Hire Services Ltd et, delivered on 15th July 2025, provides a detailed legal analysis of rooftop and airspace rights in the context of condominium ownership, especially in situations where the owner of the airspace decides to build further storeys.

The case arose from a dispute between several residents of "Rebecca Court", in St Paul's Bay and the developer, S.C. Hire Services Ltd, following the latter’s application to construct a penthouse above the existing roof level. While the development had been authorised by a valid planning permit, the residents objected on the basis of their alleged rights of use over the roof, which they stated would be severely affected by the development. The case required the court to engage with the nature and scope of those rights, particularly in light of varying contractual provisions found in the parties’ deeds of sale and the framework provided by the Condominium Act.

The key legal issue was not whether the developer held legal title to the roof and the airspace, which was not in dispute, but whether that title could be exercised in a way that interfered with the use of the roof by other apartment owners. Central to this analysis was the distinction between co-ownership of the roof as a common part of the condominium and the existence of limited rights of use granted by contract. The Court had to determine whether the affected residents could oppose the development either because they held a proprietary interest in the roof or because they had acquired other enforceable rights which could not be unilaterally reduced by the development.

The Court examined each deed of sale for each plaintiff, focusing on the express wording used. Certain plaintiffs had contracts which granted them the use of all common parts, including the roof, without qualification. Others had deeds which referred only to specific entitlements, such as the right to install a water tank or to connect a television aerial, while also stating that the vendor was reserving ownership of the roof and the right to construct additional units at roof level. The Court declined to treat all plaintiffs uniformly, recognising that each deed created distinct legal relationships.

In cases where the roof was described as a common part and the purchaser was granted a general right of use, the Court concluded that the developer’s proposed works would materially affect the plaintiffs' enjoyment of that common part. The alterations, which included reducing the usable area, modifying access points and lowering the parapet wall, were found to significantly impair the domestic use of the roof. Because these rights were of a communal nature and formed part of the shared amenities of the condominium, the developer required unanimous consent from the other co-owners before proceeding. In the absence of such consent, the Court held that the developer was not entitled to implement the changes in a manner that would prejudice those rights.

For those purchasers whose contract of acquisition limited their rights on the roof, such as the right to place a water tank or connecting to shared infrastructure, the Court took a narrower view. Although these rights did not amount to co-ownership, they were nevertheless enforceable and had to be respected. The Court interpreted these clauses as creating rights of use which, while not amounting to ownership or an interest in the common parts, still placed obligations on the titleholder. The developer, as owner of the roof, could not interfere with the exercise of these limited rights, provided they were exercised in accordance with the contract. However, because the contracts expressly contemplated future development, including the reduction of usable roof space, the Court found that the plaintiffs could not object to the works provided that their specific entitlements were preserved. In practical terms, this meant that the developer was required to ensure that alternative space was made available for tanks or aerials and that safe access was maintained, but it was not required to maintain the roof in its original state or to consult these owners before proceeding.

The judgment delved deeply into property rights unders Maltese law; the owner of the roof and airspace must respect the rights previously granted to others. Where those rights are protected by statute or by contract, they impose real and enforceable limits on what the owner may do. Thus judgment also reaffirmed the often repeated principle that a planning permit does not, on its own, determine the rights of the developer, as it is always without prejudice to third-parties' rights.

The judgment is certainly not the first, but is the most recent to reaffirm that legal title to a roof or an airspace does not override the rights of other owners where those rights are expressly granted or protected by law. Developers must undertake proper legal due diligence before proceeding, including a careful examination of the rights granted in the individual contracts of all other members in the block.

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Dr Carlos Bugeja is Partner at PROLEGAL Advocates.

Disclaimer: This article is not to be construed as being legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja at carlos@prolegal.mt.