Developer to bear expenses for reconstructing a common party wall when the bearing capacity of the wall is exceeded

The Developer must bear the expenses for reconstructing a common party wall when the height proposed in the development cannot be supported by the common wall

Jodie Darmanin, Junior Associate, Mifsud & Mifsud

The Developer must bear the expenses for reconstructing a common party wall when the height proposed in the development cannot be supported by the common wall.

This was held in the final judgment given in the acts of the warrant of prohibitory injunction of Maria Dolores Bartolo and Francis Publius Grixti vs Architect Christopher Tabone, Francesca Giovagnorio and Edward Borg on 6 January 2025. The Court was presided over by Judge Henri Mizzi.

The parties both own properties which are adjacent to one another in St Paul’s Bay. The Defendant Francesca Giovagnorio obtained a planning authority permit to drop the roof of a first-floor maisonette and to build 5 additional storeys including a penthouse, resulting in seven storeys from street level. The plaintiffs expressed their concern that the developer was going to build on the existing common party wall and increase its height, when such wall is not strong enough to support the additional weight of the additional storeys.

On 5 December 2024, the plaintiffs presented a court application requesting the Court to stop the defendants from carrying out any construction works at the site. They claimed that the defendants are assuming that the existing wall has concrete foundations when in fact the wall is old with an unstable foundation, and if the defendants continue with the construction works, the allowable bearing capacity of the wall will be exceeded. In their reply, the defendants claimed that the element of irremediable damage was missing and that damage such as cracks can be fixed. The defendants also offered the plaintiffs’ tenants temporary alternative accommodation until the construction works are completed.

The parties agreed to appoint Professor Torpiano as the Court Expert to analyse the current state of the building, the common party wall between the properties, and the foundations of the same wall, to determine whether the method of construction which is being used by the defendants can cause damage to the plaintiffs’ property and danger, and if in the affirmative, what type of damage and danger and what measures can be taken to reduce the amount of damage and to avoid danger.

In his report, Professor Torpiano stated that he is not convinced that the defendants can demonstrate, with a level of certainty that one would expect in current structural engineering, that the proposed building meets all the criteria of the required contemporary “standards”. He also stated that it is difficult to minimize the damage that could happen from the deformation of the rock because the defendants do not own the underlying maisonette where the bottom part of the common party wall sits and therefore, they cannot make an intervention to strengthen or consolidate the rock. He concluded that there is a strong possibility of damage in the existing property that cannot be mitigated.

During the final hearing, the plaintiff’s lawyer made reference to Article 415 of the Civil Code, Chapter 16 of the Laws of Malta, which states that “Where the common wall is not in a condition to sustain the additional height, the person desiring to raise its height must have it entirely reconstructed at his expense, and the additional thickness must be taken on his own side”.  He reiterated that the common party wall cannot support the additional weight that the defendants would like to add to it. However, the defendants said that they were ready to take measures such as adding lateral beams to minimize the risk of damage.

In its decision, the Court said that the plaintiff’s right was proved prima facie and stated that stopping the defendants from increasing the height of the common party wall was the only way in which the plaintiffs’ right to have Article 415 of the Civil Code observed can be protected. Therefore, it proceeded to uphold the warrant of prohibitory injunction and concluded that the defendants can only carry out works which do not involve the raising of the common party wall and those that are necessary for reasons of health, stability and removal.