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8 maltatoday | SUNDAY • 29 SEPTEMBER 2024 LETTERS & LAW Letters to the Editor Law Report A rare moment of national pride NEIL Agius's world record non-stop swim is a feat in its own right and one that put on display the strength of hu- man endeavour and perseverance. But his achievement is also remarkable be- cause it enabled a nation to be proud of one of its own. Neil had us all hooked onto our phones, to see where he had arrived as he continued with his arduous swim around the coastline despite worsening weather and sea conditions. I applaud Neil for his personal achieve- ment but I also thank him for giving us a rare shared moment of national pride. It was one of those few occasions where we collectively cheered on as one of us per- formed an awe-inspiring feat, which the vast majority of people like me can only ever dream of achieving. Thank you, Neil. T. Mangion Sliema Nuclear power should complement wind and sun energy I sometimes wonder whether the grow- ing emphasis being placed by the EU on alternative energy sources like wind and solar is sending Europe down a rabbit hole. While a serious and rapid shift to green energy is needed to combat climate change, it would be a problem if the EU comes to depend on wind and sun for its power needs. These natural elements may be free and available in abundance almost everywhere but they are also in- termittent and outside human control. Unless, large-scale wind and solar panel farms are accompanied by battery stor- age options, they will remain unreliable sources of energy. To ensure security of supply, the EU must invest in a chain of small-scale nuclear reactors around the continent to provide clean and reliable energy. In Malta's case, a small-scale off- shore nuclear power plant could comple- ment the floating wind and solar power plants that are being considered for the waters around us. Nuclear power raises the spectre of catastrophic incidents but the truth is that safety levels have vastly improved over the years. Even Italy, which had killed its civilian nuclear ambitions in the 1980s in the wake of the Chernobyl acci- dent in what was then the Soviet Union, is eyeing nuclear energy once again as part of its decarbonisation strategy. The advantage of nuclear over hy- drogen, which will remain the greenest choice if produced by wind and solar power, is that the technology already exists. The mass production of green hy- drogen is still a far-off possibility unlike nuclear energy of which multiple exam- ples abound. I believe the EU needs to include nu- clear energy as an integral part of its decarbonisation drive and Malta should not be left out. D. Aquilina Fgura PROPERTY held in common is to be sold by licitation when it cannot be divided conveniently and without being injurious- ly affected, and compensation cannot be made with other common property of a different nature but of equal value. This was held in the judgment 320 Limited vs Dr Kris Scicluna as the spe- cial mandatory of Maria Magdalene Newbury, Joan Camilleri, Jodie Marga- ret Simone Camilleri, Joseph Camilleri and Joshua Antonio Neil Camilleri de- cided on 23 September 2024 by the First Hall, Civil Court. The Court was presid- ed over by Judge Mark Simiana. 320 Limited is the owner of an undi- vided share of six-sevenths (6/7) of a property located in Zurrieq. The oth- er one seventh undivided share (1/7) of the property is co-owned by the de- fendants Maria Magdalene Newbury, Joan Camilleri, Jodie Margaret Simone Camilleri, Joseph Camilleri and Joshua Antonio Neil Camilleri. The plaintiff no longer wanted to co-own the property with the defendants and it requested the Court to sell the property by licitation since it claimed that the property is not divisible. In their reply, the defendants agreed that the property was to be sold by licitation at the best market price, but they emphasised that the sale must take place with the participation of extrane- ous oblators. The Court quoted Article 515 of the Civil Code which states that where com- mon property cannot be divided con- veniently and without being injuriously affected, and compensation cannot be made with other common property of a different nature but of equal value, it shall be sold by licitation for the purpose of distributing the proceeds thereof. The Court considered that as a mat- ter of principle, it should point out that apart from the principle that licitation is the ultimate means for which recourse to the Court is made to seek the division of the common good, there is the other principle that notwithstanding claims which may or may not be included in the sworn application, the Courts are always able to order the division to be carried out in such a way to be in the best inter- est of the co-owners. The rationale be- hind this latter principle is that once the plaintiff party is requesting division, the Court is always facilitated to accord the modus divisioniss that it sees best and most useful in the circumstances. This means that the court can order licitation to take place even when no re- quest has been made by the parties and it can also order the division of the prop- erty in a different way when the plaintiff has requested the property to be sold by licitation. The Court referred to Article 501 of the Civil Code which states that the property is to be appraised by experts who should state in their report wheth- er the property can be conveniently di- vided, and if so, the experts should also determine each of the portions made up and the value thereof. The Court quoted the judgement Vic- tor Attard vs Maria Attard decided by the Court of Appeal in 2010 where it was held that "in this case, the Court avoided appointing a technical expert because it was an obvious fact that the share of the defendent could not be split up without causing inconvenience and without dis- turbance, as indicated at law." In the present case, the Plaintiff had presented its own architect as a witness, but the Court was of the understanding that considering the condition of the property and the unequal shares of the parties, it cannot be said that the prop- erty can be divided easily. The Court held that the fact that a permit was ob- tained on the property for development does not affect its decision on whether the property can be easily dividable or not, because it must look at the condi- tion and state of the property at present and not how it can be changed eventu- ally. It was also outlined that the property could neither be divided by assignment, because the assignment of the defend- ant's share to the plaintiff against the equitable payment for a forced sale is not permissible, and the assignment of the plaintiff's share to the defendants will only lead to overpriced equities that are also not permissible in matters of di- vision. The Court decided that it was impos- sible to divide the property into the re- spective shares of the parties. Therefore, it ordered the property to be sold by lic- itation and for the funds recovered from the sale to be split between the parties in their respective shares. Common property to be sold by licitation when it is indivisible and compensation cannot be given with a similar common property JODIE DARMANIN Junior Associate Mifsud & Mifsud Advocates