Court disagrees with easement claim

The plaintiff claimed the defendants make use of a cesspit which is situated in her property and to make use of the cesspit they pass across her property without having the legal right to do so.

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Malcolm Mifsud
18 February 2016, 8:00am
The First Hall of the Civil Court ruled against a claim that the use of a cesspit, and of windows violated the property rights of the plaintiff. This was decided on 9 February, 2016 by Mr Justice Silvio Meli in Giovanna Camilleri -v- Lorenza Micallef and Mario Micallef.

In her application Camilleri explained that she is the owner of a property in Bahrija and her property is adjacent to that of the defendants. The defendants make use of a cesspit which is situated in her property and to make use of the cesspit they pass across her property without having the legal right to do so.

Camilleri further explained that she purchased the property in 2002. The defendants have windows and other apertures overlooking her property and as such are violating her rights as a property owner. According to Camilleri, this constitutes a molestation in terms of Articles 425 and 534 of the Civil Code. The plaintiff is asking the court to declare that the right of passage to the cesspit does not exist and also that the windows and apertures overlooking her property constitute a servitude and therefore, order the defendant to remove them, together with the cesspit.

The Micallefs presented their statement of defence and held that according to Article 534 of the Civil Code the action should be instituted within one year when the windows were opened. These windows and the cesspit have been in existence for over 30 years. However, they claimed that the action is null and void since it is based on a number of claims which are distinct from each other and therefore contrary to Article 789 (c) of the Code of Organisation and Civil Procedure. 

Mr Justice Meli in his judgement held that this issue deals with two properties adjacent to each other. The defendants have windows and apertures overlooking the plaintiff’s property. Furthermore, the properties are situated in a rural area and they cannot connect to the national drainage system and therefore, make use of a cesspit. However, the cesspit is in the plaintiff’s property and every time maintenance works are done, the defendants have to enter her property. Camilleri is claiming that although she purchased the property in 2002, she came to know of this situation in 2008. She instituted the case in 2010.

The Court then analysed the legal points and that the action is based on Article 534 of the Civil Code, which according to Domenica Mamo et -v- Antonia Galea et decided on 18 February, 2004, the action has three elements. These are that there must be possession of the immoveable or moveable property, the act must qualify as a molestation and the action must be instituted within a year.

According to the defendant the plaintiff admitted that she knew of the situation in 2008, but was in possession of the property in 2002, and had been in the family previously. The action was instituted in 2010 and, as a result, the one year time limit was surpassed. 

With regard to the plea of plurality, since the first action deals with the molestation, the other is an action negatoria. The defendants state that this runs counter to the principle electa una via non datum recursus ad alteram, where the plaintiff must choose one action. However, these two actions are intrinsically connected and therefore, the claims are acceptable.

With regard to the claim to close the windows and apertures, the plaintiff held that these are causing a servitude on her property, however, according to a previous judgement in Vella  v Spiteri pf 11 March, 1983, the action cannot be a possessory action but one establishing a title.

With regard to the servitude, the property of the defendants is actually of Elisa Company Limited and it is merely leased out to the defendants, and the action in question is one of title, since it is asking the court to determine whether a servitude exists on her property, however, the plaintiff failed to prove her case.

Mr Justice Meli therefore, moved to dismiss the action 

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Malcolm Mifsud is a partner at Mifsud & Associates.