Issue link: https://maltatoday.uberflip.com/i/1072992
maltatoday 13 | SUNDAY • 20 JANUARY 2019 CULTURE ENVIRONMENT LAW & PLANNING THE type of action does not need to be explicitly pointed out, however if the elements of that type of action exist, then it may be sufficient.This was held in a judgement before Magistrate Dr Caroline Farrugia Frendo on 15th Janu- ary 2019 in Kenneth John Walters and Antonia Walters vs. Denmar Properties Ltd., Joseph and Mary Agius. The plaintiffs filed an action after the floor tiles of their residence were moving and emerged to be damaged. The cost of the damages amounted to €8517.74. The defendants presented a statement of defence in which it was explained that the Walters purchased the prop- erty in April 2013 from the company. The company held that it fulfilled its obligations. The action should not be one of damages but should be an action to return the property sold or an action to reduce the price in terms of the Civil Code. Magistrate Dr Farrugia Frendo ana- lysed the evidence produced where the defendant approached an architect to look at her floor tiles in her house. Ac- cording to Architect Neil Felice the floor tiles had this dividing space smaller than that recommended and therefore with the heat they could not expand and lifted from the ground. The tiles should have been gres rectified, which are more expensive. Perit Felice recommended that the tiles be removed, and new ones placed. The plaintiffs' tile layer affidavit had mentioned that the underlay was not prepared well, allowing the tiles to move and be damaged. The defendants' architect explained that the floor tiles were fixed in 2008, while works were being carried out in the whole block. He did not receive any complaints from other owners in the same block. Tania Walters, the plaintiff told the court that she and her husband pur- chased the property in 2013 and the floor tiles were already there. She filed the claim in 2016 when she noticed that the tiles were moving. She has no inten- tion to rescind the contract, in which she purchased the property. The plain- tiffs are asking to be compensated for remedial works that they had to carry out due to defects to the tiles of the property they purchased from the de- fendants. The damages surfaced three years after they bought the property and immediately they presented a judicial protest in court. The Court quoted from Article 1424 to 1427 and Article 1431 of the Civil Code, which read: "1424. The seller is bound to warrant the thing sold against any latent defects which render it unfit for the use for which it is intended, or which diminish its value to such an extent that the buyer would not have bought it or would have tendered a smaller price, if he had been aware of them. 1425. The seller is not answerable for any apparent defects which the buyer might have discovered for himself. 1426. Nevertheless, he is answer- able for latent defects, even though they were not known to him, unless he has stipulated that he shall not in any such case be bound to any warranty. 1427. In the cases referred to in articles 1424 and 1426, where the buyer may elect either, by instituting the actio re- dhibitoria, to restore the thing and have the price repaid to him, or, by institut- ing the actio aestimatoria, to retain the thing and have a part of the price repaid to him which shall be determined by the court. 1431. (1) The actio redhibitoria and the actio aestimatoria shall, in regard to immovables, be barred by the lapse of one year as from the day of the contract, and, in regard to movables, by the lapse of six months as from the day of the de- livery of the thing sold. (2) Where, however, it was not possi- ble for the buyer to discover the latent defect of the thing, the said periods of limitation shall run only from the day on which it was possible for him to dis- cover such defect." As to whether the action is time barred, the Court quoted from a pre- vious judgement Maria Rosa Muscat Baldacchino -v- Edward Vincent Kind noe, decided on 18 October 1963, which held that the prescription period does not start when the defect is discovered, but when it is ascertained that the defect exists. From the evidence of this case, when the defects started to emerge the plaintiffs asked a competent person to have a look at the tiles and verify from where the problem was coming from. This evidence was not contradicted by the defendants. According to Alexander Abela et -v- Carmel Micallef et decided by the First Hall of the Civil Courts on 9 January 2012, held that a defect includes an ab- normality or imperfection. A latent de- fect is when a nonprofessional eye can- not identify the defect. Magistrate Dr Farrugia Frendo held that she is satisfied that the latent defect did exist, and the amount sought by the plaintiffs is correct and therefore, this was actio aestimatoria, since there is no indication that they would like to move out of their home. The Magistrates' Court may decide these cases, as long as the value does not exceed the com- petence. The Court then moved to order the defendants to pay €8,100 to the plain- tiffs. Elements of an action sufficient for that action to be sustained LAW A planning application contemplat- ing the redevelopment of an old room incorporating a roof consisting of masonry slabs and timber beams was turned down by the Planning Com- mission. The site in question was lo- cated outside the development zone of Mosta. To justify the decision, the Commission held as follows: 1. The proposed development ran counter to the provisions of policy 6.2C (5)(a) of the Rural Policy & Design Guid- ance (RPDG) 2014 in that the existing structure was found to be not 'legally established or covered by a development permission'; 2. The proposal was not in line with the Thematic Objective 1 of the Strategic Plan for Environment & Development which states that land take up should be limited for uses which are necessary or legitimate in rural areas; 3. The proposal ran counter to Rural Objectives 1, 3, and 4 which aim to fa- cilitate sustainable rural development by controlling the location and design of rural development, as well as the cumu- lative effect of such development. In reaction, applicant lodged an appeal against the Environment and Planning Review Tribunal, insisting that permis- sion should have been issued. In his ap- peal, applicant put forward the following arguments: According to the rural policy, the term 'legally established' was tantamount to 'any intervention, including land-use change and land reclamation covered by development permission or that which is visible on the 1978 aerial photographs'. Given that the building in question ex- isted prior to 1978, it was therefore con- sidered to be legally established in terms of law. It followed that applicant had a vested right over the property and the Authority was thus wrong to conclude that the proposal was in breach of policy 6.2C (5)(a) of the Rural Planning Guid- ance on the basis that "the existing struc- ture has not been legally established or covered by a development permit"; In reply, the Authority acknowledged that applicant had a permit bearing ref- erence PA3314/09, which permit was still valid. This permit envisaged the construction of a swimming pool and wells, the restoration of rubble walling and additional boundary walls, reha- bilitation of existing fields and existing structures. This permit was, however, issued subject to the removal of the room in question. More so, the officer observed that, according to the old ae- riel maps, the structure in question was unroofed. In its assessment, the Tribunal ob- served that the room in question was in a dilapidated state. It also confirmed that, as stated by the Authority, a permit was issued on site for the rehabilitation of a dwelling located within the same pre- cincts, subject to the removal of the room in question. Having said that, the Tribu- nal noted that the structure in question existed prior to 1978 and it could thus be rebuilt according to policy. For this rea- son, the appeal was entertained. robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Reconstruction of room allowed after it was found to have existed prior to 1978 mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates