- Dr Carlos Bugeja
The Good Old 'Opra Morta'
By Dr Carlos Bugeja - Partner
Our Civil Code (Chapter 16 of the Laws of Malta), the law which incorporates the most important laws relating to private rights, was consolidated into one thick book way back in 1870. With the passing of time, this law was retouched, improved, and amended several times; yet, there are still articles of law which remain unchanged, despite the passing of more than one hundred and fifty years. One of these infamous article is 427, a provision which is unknown to many, despite its importance.
Article 427 of the Civil Code (Chapter 16 of the Laws of Malta) reads:
“(1) The person in whose building there are stairs leading to the roof, is bound to raise at his own expense the party-wall to the extent of one metre and eighty centimetres above the level of the roof.
(2) The portion of the wall above the level of the roof must be of the same thickness as the party-wall below such level.
(3) Where both neighbours have stairs leading to their respective roofs, each of them may compel the other to contribute half the expense necessary for raising the height of the party-wall as aforesaid.”
At the helm of this principle is the concept of vertical ownership; he who owns a property is presumed at law to own the airspace above it, unless there’s proof to the contrary. That means that we often see situations where the owner of a a roof may enjoy a party wall in common with the owner of the yard floor. This gives him responsibilities, among which that under article 427(1) of the Civil Code.
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. The interpretation of our courts is that where there is an accessible footing adjacent to the party wall (thus, even a terrace), this law has to be applied, independent of the fact that such a high and bland wall may be deemed unsightly.
The idea expressed by our courts is that “persuna għandha dritt fi kwalunkwe żmien tesiġi li l-opramorta tipproteġih mis-suġġezzjoni tal-vicin” (Court of Appeal, 28/10/1991). A wall must be solid - glass panels or railings won't do, for "...meta persuna tkun mal-poġġaman tal-metall li qiegħed fuq il-ħajt li jifred iż-żewġ proprjetajiet, il-possibbiltà li wieħed jittawwal ġo proprjetà ta' latturi hija waħda bla tfixxkil ta' xejn.” As seemingly odd as this rule is, and even though it was promulgated in a time where buildings in Malta were completely different than they are today, it is really and truly part our of law, and subject of various judgments throughout the years, including recent ones (see for example the judgment of 28/5/2021, delivered by the Courts of Magistrates (Superior Jurisdiction - Gozo) in the names of Josephine Azzopardi et vs George Pace et.
There are solutions to this building (and why not, aesthetic) problem, and all these solutions involving the installation of a 'barrier' from prying. It was stated by our courts that the owner "...għandu d-dritt li jagħżel li jevita l-opramorta billi jirrendi t-terrazzini tiegħu jew xi parti minnhom inaċċessibbli" (Court of Appeal, 11/11/1997). The nature of this 'barrier' or impediment is not easily discernible or qualifiable; in each case, the court will have to decide whether the impediment put qualifies as a 'xkiel' to access for the purpose of avoiding the looking onto a neighbours property. More often than not, this depends on the nature of the case.
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 email@example.com.