Issue link: https://maltatoday.uberflip.com/i/1176246
18 maltatoday | SUNDAY • 13 OCTOBER 2019 LAW & PLANNING IN the case of a vacant inheritance, meaning where there is no heir, then the claim must be made by the lega- tee against the curator for the grant- ing of possession of the property, since it is the curator that has legiti- mate possession of the property in such cases. This was held by the First Hall Civil Court on the 8th of October 2019 by Hon. Judge Grazio Mercieca in the case of Mallia Louise vs Dr Phyllis Aquilina who through a Court de- cree was nominated as the curator of the vacant inheritance of Antonia Buhagiar. The Court heard the claims by the plaintiff, who wanted to gain pos- session of the property which her second cousin Antonia Buhagiar left her under the title of legacy. The late Ms Buhagiar did not in- stitute anyone as universal heir, and her only disposition was in fa- vour of the plaintiff, who took care of her in her old age. Ms Buhagiar died unmarried, had no children and her parents and siblings had died, whilst her nephews and nieces had renounced to the inheritance. In 2015, Dr Phyllis Aquilina was appointed curator of the vacant in- heritance. Through her searches, Dr Aquilina had found that only half of the share of the property in question had been passed on to Ms Buhagiar through a sale by auction by which she bought the property in 1989. The plaintiff held that she was exer- cising the action against the curator due to the procedure expounded in Article 726 of the Civil Code which states that "the legatee must demand of the heir possession of the thing bequeathed" and goes on to say that "the case of immovable property the legatee may demand the grant of such possession be made by means of a public deed." The Court held that the plaintiff correctly instituted the action for possession against the curator be- cause it is a well-founded principle in our law that until the legatee re- ceives a release from the heir, then possession cannot be given. The Court held that until this per- mission is granted, although the leg- atee is a proprietor, this right is only abstract, and subject to contestation by the heirs. The Court then explored the posi- tion of the legatee under Italian law and stated that it is clearly explained in Italian law that upon the death of the testator, the right to the property is indeed transmitted to the legatee. The legatee must, however, ask the heirs for possession of the thing, even when he has been expressly dis- pensed by the testator. In cases of a vacant inheritance, the curator, al- though not having material posses- sion of the property, has legitimate possession and so must accept that the possession is enjoyed by the leg- atee. The Court quoted the judgement Wismayer vs Wismayer (1946) wherein the Civil Court confirmed that the request for possession should be made to the heirs, as those having the legitimate possession, even if they don't have material pos- session, and this in confirmity with Article 763. The curator steps into the shoes of the heir and therefore gains legitimate possession of the property and is entitled to make those decisions. The Court concluded that the plaintiff was to take possession of the half undivided share of the prop- erty of the late Ms Buhagiar, follow- ing the publication of the relevant public act needed in virtue of Article 763. All expenses, both of the pro- ceedings as well as those related to the publication of the public act, are to be paid by the plaintiff. Legatee must make a request to curator in case of a vacant inheritance to gain possession of the property LAW Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING AT issue was a sanctioning applica- tion involving a 22sq.m room which was constructed beyond the allow- able 30-metre plot depth. As one would have expected, the Planning Commission reasoned out that the proposed development ran counter to the provisions of policy P27 of the Development Control Design Policy, Guidance and Standards 2015 which specifies that 'in order to safeguard the integrity of existing gardens, neighbourhood or locality in terms of important green enclaves, the depth of built footprint as measured from the official building alignment will not be allowed to exceed 30 metres.' In addition, the Commission held that the proposal was in breach of Urban Objective 3 of the Strategic Plan for Environment and Devel- opment (SPED) which aims to pro- tect and enhance the character and amenity of urban areas. In reply, applicant filed an appeal before the Environment and Plan- ning Authority, insisting that the Commission was wrong in its judg- ment. Applicant submitted that his prem- ises consisted of a two-storey terrace house, which was built way back in the early eighties. Applicant, now appellant, explained that he admit- ted that he had obtained a permit, though admitting that the store in question was built without prior au- thorisation. The Tribunal was reminded that the store, which was the main bone of contention, had a footprint area of approximately 22sq.m. Appellant disagreed that the said store was in breach of policy P27 of the Develop- ment Control Design Policy, Guid- ance and Standards 2015 as held by the Authority since his site had a depth of over 50 metres whereas the adjacent properties 'not only projected deeper than his property but also had rooms at the rear which abut onto his gardening store, for which sanctioning was being re- quested'. On his part, the case officer was left unimpressed with applicants' ar- guments. It was reiterated that the garden rooms in the case of the adja- cent properties were situated at 'the very back of the site'. Moreover, the officer observed that the plot next door had a 'significantly larger gar- den which merits a garden room in order to better safeguard the build- ing of which it forms part that lies within the Urban Conservation Ar- ea.' In its assessment, the Tribunal saw that the disputed 22sq.m room was located beyond the statutory 30-me- tre distance taken from the building line. Nevertheless, the Tribunal took regard of the surrounding context, in particular the size of the room in relation to the dividing garden wall, and went on to conclude that there was no issue insofar as visual impact was concerned. Against this background, the Trbu- nal held that there was no objection to the issuing of the permit, so long as applicant was subject to a fine of Eur 540 since he had proceeded with the works without authorisation. Room approved in spite of 30-metre rule robert@robertmusumeci.com ASK ROBERT mmifsud@mifsudadvocates.com.mt ASK MALCOLM