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maltatoday | SUNDAY • 8 OCTOBER 2023 11 LAW CLASSIFIEDS A party to a promise of sale agree- ment may not insist on a condi- tion which may be in his favour and still insist on the sale of the property. This was held in Ray- mond Agius vs Victor John De Brincat decided by the First Hall of the Civil Courts on 3 October 2023. The Court was presided by Judge Anna Felice. In the sworn application, Agius explained that he entered into a promise of sale agreement to purchase a property in St Paul's Bay. The price was €205,000 and he paid a 10% deposit. The promise of sale agreement was subject that he received a verbal commitment or an agreement that he will have right of access to the airspace when it is built. The Defendant informed him that the other property owners of the block objected to this. The Plaintiff still wanted to go ahead with the sale. The promise of sale agreement was extended. In the extension, the Plaintiff was to build four apartments and a penthouse and the penthouse, owned by the Defendant. A second agreement was signed whereby the Plaintiff was to build the penthouse for the Defendant for the price of €160,000 and the balance of €45,000 represented the airspace on the fourth and eighth floor. In this private writ- ing there were some areas, with regard to the description of the property, which remained the same to the original promise of sale. The Plaintiff asked the court to declare that original promise of sale agreement and the two private writings are valid at law and order that the sale proceed. The Defendant filed a statement of defence, in which he confirmed that the owners of the other prop- erties in the block objected that the Plaintiff be given access to the airspace from the common parts for the construction upon the air- space and therefore, the condition was not acceptable. Furthermore, although the agreement men- tioned both €160,000 and €45,000, the Plaintiff's interpretation that there is an error is misleading. The Defendant filed a counter-claim where he asked that the promise of sale agreement be declared null and void. The Court took to task the legal issues raised by the Parties. The first of which was whether the De- fendant was in bad faith and was in collusion with the other owners of the block, who objected to the development. The Court pointed out that this claim was not listed in the sworn application as one of the requests of the Plaintiff. Furthermore, the other owners of the properties are not owners of the airspace and therefore, the fact that they objected had no bearing on the development of the airspace. The Court further pointed out that it has to decide on the claims and the pleas raised by the Parties. Issues raised in the submissions after the evidence has been presented to the court is not the merit of the case. If the Plain- tiff wanted the court to decide on any matter, he had to list this in the demands. The main issue revolves around a promise of sale agreement of a block of apartments and the de- velopment of its airspace. For the development of a penthouse the Plaintiff was to pay €45,000. The case is with regard to whether the condition was laid down in the promise of sale. The promise of sale agreement said that at the time there were four apartments and the vendor, who is the De- fendant, owned one forth. The promise of sale agreement was to be valid only if the Plaintiff was al- lowed by the other owners access from the common parts if the air- space is developed. Therefore, the Plaintiff is asking whether if the permission from the other owners is not given, is the promise of sale agreement still valid. The Plaintiff did renounce to this condition in a judicial letter he had filed. The Court quoted from a judg- ment delivered by the Court of Appeal on 25 February 2000 in Perit Anthony Stivala et vs Gerald De Trafford. The court had said in this judgment that the party to a promise of sale agreement may renounce to a condition which is beneficial to that party and there- fore, the agreement is still binding on the other party. The Court made reference to Article 1057 of the Civil Code which reads: "Every condition must be ful- filled in the manner in which the parties have in all likelihood de- sired and intended that it should be fulfilled". This Article must be read in con- junction to Article 993 of the Civil Code, in which contract must be executed in good faith. The same principle of law was reflected in another judgment 1 March 2021 in EMP Properties Ltd vs Jason Grech. In this case, the Court entered into the inter- pretation of the Italian law. The law permits that a party renounc- es to a condition which is in favour to that party. The Court held that the purchaser may insist for the sale, even if the property which he is buying is lesser than that prom- ised. After the sale takes place, the purchaser cannot complain or in- sist that the sale be at a lesser price or a change in conditions. In this case the condition, which is the merit of the case, is in favour of the Plaintiff in order for him not to face objections from other owners of the block. Once he does not need these conditions, the sale can proceed. The Court then moved to order that the sale proceed. A party to a promise of sale may renounce to a condition LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates HOLIDAY ACCOMMODATION MARSALFORN, Gozo - holiday apart- ments for short or long lets with magnifi- cent sea-views. Call 21556021, 27556021, 79426883 PROPERTY TO LET SHOP TO LEASE - Class 4 B 60 sqm corner shop to lease in San Gwann. Key money €49,888 and €40 a day rental. Call on 79703404. XLENDI - catering premises in prime site to let. 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