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8 maltatoday | SUNDAY • 11 AUGUST 2024 LETTERS & LAW Letters to the Editor Law Report Accessibility essential for persons with disabilities SUMMER is a time when many people look forward to enjoying outdoor activities, but for persons with disabilities in Malta, it can also highlight ongoing accessibility issues. Advocates and individuals with disabilities often hope that the summer season will prompt authorities to address and rectify the shortcomings in infrastructure and services that impede their full participation in society. In Malta, a significant area of concern for persons with disabilities is accessibility. This encompasses physical accessibility to build- ings and public spaces, accessibility to infor- mation and communication technologies, and access to services and opportunities in various aspects of life, including education, employment, and social participation. Ef- forts to improve accessibility are essential for ensuring that persons with disabilities can fully participate in society and enjoy equal rights and opportunities. Addressing these issues requires collab- oration between government bodies, local councils, NGOs, and the community. By focusing on these areas, Malta can make significant strides towards a more inclusive and accessible society for everyone, par- ticularly during the summer when the need for accessible recreational activities is most apparent. Marthese Mugliette President Malta Federation of Organisations Persons With Disability Take-up of public spaces by restaurateurs has reached unsustainable levels THE Marsaskala Residents Network (MRN) is up in arms on the issue of the illegal take-up of public spaces by owners/ operators of catering establishments in our town. This has reached disproportionate levels this summer. Over the past months, MRN has been drawing the attention of the authorities – the Planning Authority, the Lands Authori- ty, the Malta Tourism Authority, the police, the Commission for the Rights of Persons with Disability, and Transport Malta – to the various instances of abuse by various catering establishments. These outlets are either occupying public spaces illegally, or not abiding by the conditions of their per- mit. This situation is resulting in instances where pavements, ramps and public spaces are blocked or rendered unusable by the general public, compromising accessibil- ity and residents' safety. Children are also being exposed to passive smoking of res- taurant patrons within the confines of the Marsaskala Bay playground. The MRN has repeatedly asked for meet- ings with the respective ministers respon- sible for the Lands Authority and the Plan- ning Authority, but to date has received no reply. Instead of showing interest and goodwill in curbing these abuses, the authorities are instead allowing owners/operators of ca- tering establishments to continue doing as they please. Those who abuse of public land are being allowed to apply for sanctioning of these illegalities, without being asked to remove them whilst awaiting a decision to be taken on whether permits can be issued or not. This is evident from replies that the MRN has been receiving from the Planning Au- thority. After several complaints filed about a number of catering establishments abus- ing public spaces, the Planning Authority representatives confirmed that action might be taken only after a decision is released on the sanctioning applications filed by the owners/operators of these same catering establishments. The MRN feels that it is unacceptable that rights of residents, young and old, are being blatantly abused. Responsible minis- ters, and the relevant authorities are expect- ed to ensure that guidelines, regulations and civic principles are safeguarded. To this end, the MRN insists that these abuses are stopped at once, and that respect towards residents and visitors of Marsaska- la is duly restored. The MRN also encourages residents who wish to live in a village that respects the principles of justice and accessibility, to put pressure on local councillors so that these elected members safeguard our rights. Complaints can be sent to any one of the relevant authorities – the Planning Author- ity, the Lands Authority, the Malta Tourism Authority, the police, the Commission for the Rights of Persons with Disability, and Transport Malta. It is important that any reported irregularity and/or lack of acces- sibility due to these abuses, includes date, name of establishment and street, accom- panied by photographic evidence. Marsaskala Residents Network (VO 2200) IN a recent decision, the First Hall of the Civ- il Court, presided over by Justice Dr Joanna Vella Cuschieri, ruled against the division of a co-owned property in the case of Cathia Mifsud Bonnici et vs. Gemma Micallef. The judgment, delivered on 27 June 2024, high- lights the critical importance of technical ev- idence and expert testimony in property dis- putes for an unbiased division of co-owned property. The plaintiffs sought to divide a property held in common with the defendant. In their application, the plaintiffs stated that the cur- rent co-ownership arrangement with the de- fendant hindered them from developing their property into a multi-unit apartment block. However, the defendant argued that the property could not be conveniently divided without causing significant damage and prej- udice to her property rights. In this regard, defendant's stance was that the property held jointly was not conveniently divisible and cannot be divided without causing damage to her rights. The defendant claimed that had the plaintiffs' claims be accepted, she would be gravely prejudiced, especially considering that according to the partition plan presented by the plaintiff, she would have to cede a part of the property that is exclusively hers with- out any form of compensation. The court was notably critical of the plain- tiffs' approach, particularly the lack of a court appointed architect to provide an impartial assessment to determine if the property in question could really be conveniently divided and if so, how the division should be made. In its conclusion, the court highlighted that the division of a property held in common was to be based on expert advice by an architect which in this case was to be made by a court appointed architect which plaintiffs chose not to nominate in the stage of producing their evidence. Instead, the plaintiffs relied solely on a re- port from their ex-parte architect which report was found to be deficient for several reasons: 1. Biased Information: The architect's re- port was based solely on documents provided by the plaintiffs, lacking independent verifica- tion and hence based on misinformation. 2. Disproportionate Shares: The proposed division did not respect the shares held by the parties, which was determined to be in the 3:1 ratio in favour of the defendant. 3. Exclusive Property Rights: The proposed division suggested dividing a part of the property exclusively owned by the defendant, thereby infringing on her property rights. 4. Loss of Light and Air: The defendant's right to light and air would be severely com- promised by the proposed division. The court emphasised that an expert should have been appointed to evaluate whether the property could be divided without prejudic- ing the defendant's exclusive rights. This step was crucial to ensuring a fair and equitable division to safeguard both right-holders. In its decision, the court quoted an impor- tant legal principle that is the basic parameter for the division of common property: 'Con- veniently, means without prejudice to the in- terests of the co-owners; without detriment, meaning that there should be no depreciation in the economic value of the property due to its physical division.' The court concluded that the plaintiffs' proposal did not meet the standard of being "conveniently divisible." The proposed devel- opment was deemed unfair to the defendant, who stood to lose significantly more than she would gain. The court noted that the compensation proposed by the plaintiffs to the defendant was inequitable. The plaintiffs' plan required the defendant to cede a larger, exclusive- ly owned portion of the property, while the plaintiff would primarily cede co-owned sections. The court decided that considera- tion must also be given to how the compen- sation between the parties was made. In the judgment, it clearly transpires that the Court absolutely disagrees with how this compen- sation was made, as, firstly, the part that the defendant would have to cede is much larger than that of the plaintiff. Secondly, the major- ity of the parts that the plaintiff would cede are held in co-ownership, unlike the defend- ant's case where she would have to cede a part that is exclusively hers. The value given for such property is negligible when consid- ering that by ceding such property, parts that were previously undevelopable or limited for development would turn into developable zones or could be developed more easily and conveniently. In its final decision, the court denied the plaintiffs' claims and consequently rejected the plan of division proposed by them. This case emphasises the necessity of thor- ough and impartial evidence in legal disputes over property division which in such a case is secured by a court-appointed architect who can give impartial technical evidence. The court's decision to deny the plaintiffs' requests was rooted in the lack of adequate evidence and the unfairness of the proposed division. The defendant convinced the court that division of co-owned property should always be supported by impartial expert tes- timony which should safeguard the interests and property rights of all the parties involved. This judgment serves as a crucial reminder that one's ambition to develop a property must never come at the expense of another co-owner's rights. The mentioned Court case may be subject to an appeal. Court denies property division due to plaintiffs' lack of evidence LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates