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  • Dr Carlos Bugeja

Opening Windows

By Dr Carlos Bugeja - Partner



Many of the provisions of the Maltese Civil Code were drafted at a time when Malta was substantially different than it is today. The Civil Code (Chapter 16 of the Laws of Malta) was consolidated in year 1870, at a time where block of flats were not that common at all, and 'windows' were not much of an issue. Not the same can be said for today, for our civil courts are crowded with cases involving a seemingly innocuous act: the opening of a window overlooking a neighbour's property.


Maltese law is very conscious on one's right to freely develop a property he owns as he deems fit. In fact, article 320 of the Civil Code makes it clear that 'Ownership is the right of enjoying and disposing of things in the most absolute manner...'. But this article at law does make an exception, limiting this right only to cases where there is an express prohibition in the law. And when it comes to 'windows', the law does make a prohibition.


Article 425 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 confirms that '443.(1) 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'.


What does this have to do with windows?


The law provides for a very important presumption at law; that which states that he who owns a land has the ownership of the land, has also that of the space above it, and of everything on or over or under the surface (article 323, Civil Code). This presumption has created a cause for dispute between the different owners in a block of apartments, especially between the owner of the airspace of the uppermost apartment and that of the of the ground floor apartment/maisonette. This is because usually, the owner of the first apartment/maisonette would also own and have foot access to the internal yard and the backyard. At law, therefore, he is also presumed to own all of the airspace above these yards, unless the contract of purchase stipulates otherwise.


Here is where the problem lies. Most contracts of purchase predating the recent property boom did not contain any provision dividing the airspaces above the yards according to the levels of building, for at that time, most vendors and purchasers were unaware of the potential value of airspaces. For this reason, many contracts are silent on this matter, and the presumption at law in favour of the ground-floor owners reigns strong in many blocks of apartments all around Malta.


This reality creates a curious type of 'party-wall', that between the wall of each apartment, and the airspace at each level. Certainly - the commonplace idea is that a dividing wall is that wall dividing two built properties, but it may very well be that a party wall is that between a built property and an unbuilt airspace, at an infinite height. Therefore, when the law speaks of limitations pertaining to the party-wall, it also applies where the wall divides a built property from an airspace.



As can be seen from Fig.1 above, the windows are (saving an existent servitude according to law, as explained hereunder) deemed to be illegal on two fronts: first, they are an 'opening' in the party-wall in breach of article 425 of the Civil Code, and second, they breach article 443 since they are not set back by at least 76cm. As a result, the owner of the ground-floor (coloured in 'green' in Fig. 1) may have a claim against the owners of the apartments above him. Likewise, no new windows may be opened in any subsequent level.


Certainly - there are exceptions, and important ones, the most obvious being the existence of a servitude which was validly established through law. In poor words, servitudes are the right of a property over another, and there are instances where a contract of purchase allows the opening of the windows over another person's property. Servitudes may also be validly established through prescription, through possession for a period of at least thirty years.


The law does provide for an important exception (one may arguably categorise it as an easement established by law), and this in article 426 of the Civil Code. It states that '426. When the storeys of a house belong to different owners, each of such owners may, in his own storey, make, in the external wall, a balcony, window, door or other opening, provided the stability of such wall is not affected thereby.' This seems to refer to the wall facing the street, although there is still an unsettled legal debate of whether this exception applies if the opening sought to be made faces an external parapet, and not immediately the street. We have differing court judgments.


One more thing that needs to be said is that the law does not in any manner fix a 'price' for each window built. The law provides for rights and obligations, and it is up to the parties whether or not they opt to renounce to them and under which conditions they do so, if such renunciation if indeed valid at law. But this is a consideration for another time.


Dr Carlos Bugeja is a 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.



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