Court orders defendants to follow up judicial letters by instituting lawsuit against plaintiff

The plaintiffs asked the court to order the defendants to follow up the case by taking legal action to establish their rights, or, alternatively to stop making claims against them.

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Malcolm Mifsud
11 February 2016, 7:48am
The First Hall of the Civil Court presided by Mr Justice Mark Chetcuti accepted on 3 February 2016 a request of jactitation in a lawsuit Lars-Goran Berglund and Kerstin Anita Berglund -v- Hector Spiteri and Nadine Spiteri.

In their application the Berglunds held that the Spiteris had registered a claim against them that they had an easement in their favour in that the air space above an apartment in Sliema should not be developed in any way. In fact defendants Spiteri had requested the plaintiffs to remove a construction on the air space of the block of apartments. This was done by correspondence and even through judicial letters. Therefore, the plaintiffs asked the court to order the defendants to follow up the case by taking legal action to establish their rights, or, alternatively to stop making claims against them.

The Spiteris in their statement of defence held that their rights on the property precede those of the plaintiffs. They further explained that this action was being used to turn the tables by making them file a lawsuit when it was the plaintiffs who had to file an action on property rights. The defendants had a right not to say anything unless contrary evidence is presented. According to the defendants, there exists no contrary evidence because their title was created well before that of the plaintiffs. The defendants quoted from jurists of the likes of Laurent, Fadda and Baudry Lacantinerie.

Mr Justice Chetcuti considered the legal points and in doing so, he quoted a judgement, Mario Pickard -v- Grace Anderson, decided by the Court of Appeal on 25 November, 2011, which held that the action of jactitation takes place when a person places a claim by means of a judicial right or in writing. In order to get rid of this claim the other party presents this action to order the party with the claim to file a lawsuit within a year. 

The Court considered the facts of the case, where the defendants had sent two judicial letters in August 2014 and December 2014 to the Berglunds calling upon them to remove a wooden structure on the air space of the penthouse of the block of apartments, because the Spiteris claimed they enjoyed an easement of the same air space for nothing to be built.

This is mentioned in their contract of purchase of 2 January, 2004. This claim is therefore, made in writing.

From the evidence the air space is in the possession of the plaintiffs, as established in the contract of their previous owners, of 4 June, 1988, where the penthouse and the roof were purchased, with the right of the apartment owners to fix a tank and an aerial. This dispute was proved by the erection of a wooden structure on the roof of the penthouse in 2006. At first there was no opposition. The Court at this stage and in this action should not enter into the merits of the case. The scope of this action is not to leave pending issues and baseless allegations. 

The Court held that it would have decided the defendant’s written claim was provoked had the letters been written immediately after the wooden structure was erected. However, the judicial letters were sent eight years later and therefore, the claim had to be settled judicially and permanently. 

The Court then moved to order the defendants to institute the action against the plaintiffs within 30 days and set a court sitting for 7 March, 2016.

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Malcolm Mifsud is a partner at Mifsud & Associates.