Court rules that flat owner had no right to place water tank on roof

The plaintiffs purchased Flat 2 of a block of apartments in Cospicua on 21 January, 2010 and the contract mentioned that the roof was the property of Flats 1 and 2. Notwithstanding this, the Spiteris, who owned flat 3, placed a water tank on the roof without any authorisation. The tank was removed and Spiteri instituted a court procedure for spoliation which he won and the Court ordered the tank to be placed once again. At this stage the plaintiff noticed that there was a mistake in the contract of sale in that the roof was owned by Flats 1 and 3 and not Flats 1 and 2. 

The plaintiffs asked the Court to declare that the roof is the exclusive property of Flats 1 and 2 and to order the removal of the tank.

The Spiteris replied by saying the action is confusing and that it is time barred by 30 years.

Mr Justice Ellul examined the preliminary pleas, namely that the claims of the action are confusing. The Court disagreed because the plaintiffs were clearly complaining of the defendants’ claim that they had a right to place a water tank on the roof and the aim of this action was to establish that they do not have this right and to have the tank removed. 

With regard to the claim that the action is time barred by 30 years, the defendants claimed that they are in fact part owners of the roof, but then testified in court that they are not claiming any title on part of the roof which belongs to flats 1 and 2, but they are claiming on another part.

They claimed that since they had a share in the stairs leading to the roof, they had a right to use the same roof. The Court examined the contract of purchase of the defendant but mentioned that the roof belonged to flats 1 and 2. The Court commented that this was confirmed in the contract of the plaintiffs and the contract did not exclude any part of the roof as belonging to the two flat owners.

The previous owners of flat 3 said that the access to the roof was limited to the use of the television aerial and not hanging clothes. This was confirmed by Carmel Micallef, a representative of the family which owned the whole block. Previous owners of the flats told the court that the defendants had paid for their share of maintenance expenses of the roof, such as when they changed the door to the roof and other maintenance works. 

The defendants claimed that the water tank existed before they purchased the flat and this was accepted by the other flat owners. Mr Justice Ellul commented that the fact that they placed a water tank on the roof and no one complained does not give them the right to keep this water tank. The purchase contract does not mention this right and the defendants themselves confirmed this under oath.

Any verbal agreement between the defendants and the previous owners of flat 2, does not bind the plaintiffs. The previous owners in fact denied giving this right to the Spiteris. The Court concluded that the defendants’ claiming to having a right to fix a water tank is without any legal basis.

The Court then moved to uphold the Galeas’ requests that they were co-owners with flat 1 of the roof and the property was not subject to any servitude and ordered the Spiteris of flat 3 to remove the water tank within 60 days.

Malcolm Mifsud

Partner

Mifsud & Mifsud Advocates