The conflict that may arise between one’s right to develop an airspace and another’s right of use over such a space was recently the subject of a lawsuit in which Iuris Advocates was involved. The matter was decided by the First Hall of the Civil Court in the case Joseph Sammut et vs. Raymond Miceli et
RIGHT TO DEVELOP ROOF vs. RIGHT OF USE OF ROOF
The owner of the roof and airspace overlying an existing block of apartments sought to develop the airspace by building an extra storey. The roof contained a washroom belonging to 3rd parties, who also enjoyed a right of use over the said roof. The owner had contractually reserved the right to develop the airspace, such that the 3rd parties were aware of this and were bound to accept such a development, with a proviso, namely that the washroom would have to be replaced with a new washroom having the same specifications as the existing one. There was no other condition in the contract, and no mention was made of the right of use, particularly as to what should happen in the event that the developer opts to build a penthouse. The parties were at loggerheads – the owner insisted that once he had reserved his right to build he was thus free to develop the airspace, while the 3rd parties insisted their right of use of the roof could not be cancelled nor minimized in any way. The owner therefore sued.
AIRSPACE OVER BLOCK OF APARTMENTS – DEVELOPMENT SUBJECT TO RIGHT OF USE
The owner argued that the right of use should lapse to allow for such a development. He claimed that his decision to develop would bring about the automatic termination of the right of use; since he had reserved such a right contractually, and since his right was acknowledged by the 3rd parties, he concluded that their right of use would be overridden and thus terminated. Another argument brought forward by the developer was that planning regulations prohibited the access to/use of penthouse roofs, claiming that since the new roof (being a penthouse roof) could not be used, then the right of use in favour of the 3rd party should lapse.
On the other hand the 3rd parties claimed that their right of use ought to subsist, and could not be retracted, cancelled or altered, and without prejudice, in the unlikely event that the court would cancel or otherwise limit the right of use, then they would be entitled to adequate compensation.
The main thrust of this defense was essentially contractual. The right of use was a servitude granted in favour of the 3rd parties over the roof by virtue of a contract. No provision was made about its revocation should the roof owner come to develop the airspace. The fact that the contract was silent (unlike in the case of the washroom) indicated that the parties had no intention to alter what was agreed about the right of use over the roof, and that consequently even if/when it came to be developed it would nevertheless remain subject to the right of use. This meant that any development of the roof, subjected as it was the right of use, would have to respect such a servitude.
COURT UPHOLDS RIGHT OF USE OF ROOF, PREVENTS DEVELOPMENT OF AIRSPACE – SERVITUDE PREVAILS OVER DEVELOPMENT OF AIRSPACE
The court upheld the defendants’ argument declaring that the right to develop the airspace was not superior to the right of use.
It also agreed with the 3rd parties that a servitude such as the right of use burdening a servient tenement cannot be reduced, altered or rendered more difficult to exercise. It must therefore be respected in full. Thus the court, while quoting from another judgement of the Court of Appeal in Georgina Borg vs. Errol Cassar, remarked that while the owner may have a right to develop the airspace, that does not entitle him to ignore the 3rd parties’ right of use, which, as stated, must remain intact. The development of the airspace as intended by the plaintiff would inevitably reduce the size of the roof significantly, thus restricting the right of use. As explained above, this is not permissible. This led the court to declare that the right of use deserves protection, to the point that the permit to develop the airspace obtained from the Planning Authority cannot be used. Therefore contrary to what the plaintiff had argued, it is the servitude, in this case the right of use, that prevails over the right to develop.