Permissible distance between party-wall projections

On the 26 January, 2018, in the case Saviour and Ersilia Borg vs. Paul Camilleri et., the First Hall Civil Court, presided over by Justice Toni Abela, scrutinised Article 443 of the Civil Code (Chapter 16 of the Laws of Malta). The case and article under examination specifically deal with the distance required to be kept at law, between any windows, balconies and other similar projections from the adjacent party wall.

Article 443 of the Civil Code states the following:

“(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.

(2) In the case of balconies or other similar projections, the distance prescribed under sub-article (1) of this article shall be measured from the external line of that side of the balcony or other projection, which is nearer to the party-wall, to the internal line of such wall.”

The parties to the case under examination own neighbouring properties, in 2005, the defending party underwent further works to his respective property and, according to plans presented in court, a projecting structure was built along the facade of such property. The plaintiffs hence brought forward an action on the basis of Article 443(2) of the Civil Code and thus argued that the new structure is to be classified as a projection, and consequently, measurements are to be taken from “the external line of that side of the balcony or other projection, which is nearer to the party-wall, to the internal line of such wall”. The plaintiffs are subsequently requesting the court to order the defendant to carry out the necessary works to bring the structure in line with the law.

The court made reference to the judgment Maria Dolores Grima vs. Joseph Spiteri (2009), whereby the Court of Magistrates (Gozo) elaborated on the implication of Article 443. The court concluded that in light of the above article, the party instituting the claim is not required to prove that he is going to be prejudiced, or hindered from full and proper use of his property, should the defendant party not abide by the 76 cm requirement stipulated under the law. The court went on to say that the article in question appears to impose a legal servitude for reasons of public order, meaning that, it caters for and prohibits a situation in which the property of one party encroaches onto the adjacent property.

In light of all of the above, the principal issue which the court had to determine was whether the structure being examined falls within the remit of Article 443(1) or whether it is to be classified as an extension / projection as defined under Article 443 (2). The category under which the structure falls, determines whether measurements are to be taken from the party wall or from the external line of that “balcony or other projection”.

In order to assist in determining the above, a court appointed expert, architect Mario Cassar, was tasked with examining the properties and providing a better insight as to the boundary lines of such properties. In his report, Mario Cassar stated that the structure built protrudes throughout the three floors of the defendants property, he went on to confirm that in terms of Article 443(2), the defendants did not keep within the distance required at law, and thus the distance between the adjacent properties was less than 76cm.

The defendants contested this and stated that the structure in question was built within the buildings boundary line and thus within the limits of that property, furthermore, the defendants argued that it should not be considered as a protruding structure and should thus be examined in light of sub-article (1).

The evidence provided by Architect Mario Cassar was supported further through proof brought forward by Mr. Ivor Robinich, a representative of the Planning Authority, who, through the presentation of a site plan confirmed that the structure in question cannot be classified as part of the defendants property and in fact exceeds the limits of the defendants property.

Furthermore, as was stated in the case Carmelo Vassallo vs. Nicola Galea (1953), in the case of servitudes, even those created by law, the owner of the dominant property cannot do anything to burden the servient property and in case of doubt a decision must be taken in favour of the latter property.

In the present case under assessment, it is evident that the dominant property is that of the defendant, hence, if doubt was created as to whether or not a distance of 76cm was kept from the party-wall, the court would nonetheless, in accordance with that stated above, be in a position to decide in favour of the plaintiff.

Accordingly, the court concluded that the structure built on the defendants property is to be classified as a “projection” under Article 443(2) of the Civil Code and went on to conclude that the defendants did not observe the distance required at law. Ultimately, the court ordered the defendant to carry out all necessary works within a period of 2 months, and bring the structure and hence the distance between the adjacent properties in conformity with the law.