The elevation of common party walls

The First Hall Civil Court, presided over by Justice Miriam Hayman on 9 May 2018, in the case “Eunice u Vincent Cassar (the “Plaintiff’s”) vs. Tancred Borg (the “Defendant”)”, primarily dealt with the elevation of a common wall between two adjacent properties. In this particular case, the Court examined whether the material used to elevate the party walls was in fact solid, of good quality, and therefore in accordance with the law and common building practice.

In the case under examination, the parties own neighbouring properties situated in Pieta, the Defendant began carrying out structural works on the roof of his property in 2016, as a result of which the Plaintiff’s property was being prejudiced. Hence on the 9 May 2018, after a number of inspections and detailed reports had been drawn up by two different architects, which began in 2016 and ended in 2018, the Plaintiff’s brought forward the above quoted case, whereby they asked the court to rule on the following;

Firstly, the Plaintiff’s argued that the Defendants, whilst carrying out structural works to their property did not use proper and steady material to raise the dividing party wall, and hence argued that such wall was not being built in accordance with common building practice. The plaintiff’s had thus requested the courts to instruct the defendants to rebuild the dividing wall from scratch with suitable material.

Secondly, they argued that the opening created in the party wall was overlooking the Plaintiff’s property and was to be a breach of law, and should hence be closed.

The Plaintiff’s approached architect Matthew Bugeja who in his report drawn up on the 21 January 2016 observed that not only is the window which has been included as part of the Defendant’s structural works a violation of law, but, it also goes against the approved permit issued by the Malta Environment and Planning Authority (MEPA), and for this reason it is to be closed off straight away.

Furthermore, architect Bugeja noted that the party wall was being built in 180mm HCB and hence was not done in accordance with Article 407 of the Civil Code (Chapter 16 of the Laws of Malta) which states that

“A wall which serves to separate two buildings or a building from a tenement of a different nature must have a thickness of not less than thirty-eight centimetres.”

During a hearing held on the 15 July 2016, the parties further contested another two points, being whether the kind of material to be used when elevating the wall and whether such material should be six or nine inches thick. In light of this, the court appointed an expert, architect Nicholas Mallia, to evaluate the above-mentioned points.

After carrying out an inspection of the place, architect Mallia came to the conclusion, inter alia, that there is no specific law which dictates the type of material that is to be used, and that Article 407 did not and could not apply to this case since the underlying wall, which was the original party wall dividing both properties, was only 23cm wide, thus the new extended part of such wall which the Defendants were raising could only be built with the same thickness.

Architect Mallia further concluded that although the law doesn’t specify the material to be used when building a common wall, it is nowadays common practice that if single density bricks are to be used (as was being done in this case), the bricks must be filled with cement, a vital point which the Defendants had failed to comply with.

As a result of this, one could thus conclude that the dividing wall would not be able to withstand as much load, and accordingly poses a question as to the stability of such wall, this in turn could eventually prejudice the Plaintiff’s ability to use such party wall for any future constructions.

Additionally, the opening built into the party wall had still not been removed.

The court concluded that, although the evidence provided by the said architects does not bind it, such evidence cannot be taken lightly and can only be disregarded should the court be convinced that the evidence given was not just and hence incorrect.

The court confirmed that in no instance did they doubt the reports drawn up and presented by both architects and consequently ordered the Defendant’s to close the opening created in the party wall and to make good all structural defects as detailed in architect Mallia’s reports. All expenses must be borne by the defendant.