Issue link: https://maltatoday.uberflip.com/i/232206
47 Opinion maltatoday, SUNDAY, 22 DECEMBER 2013 When a promise of sale may not be honoured M r Justice Lino Farrugia Sacco on 16 December 2013 decided in the lawsuit between Patricia Degiorgio –v– Ramel u Zrar Limited that a promise of sale agreement may not be enforceable if one or more of the conditions listed in the agreement cannot be met. Patricia Degiorgio filed an action in court where she held that she had entered into a promise of sale agreement with the defendant company to purchase an apartment in St Paul's Bay on 28 October 2003. The agreement was registered with the tax authorities and the agreement was valid until 31 December 2004. On 21 December 2004, the plaintiff filed a judicial letter against the company calling upon them to appear on the final deed. From the searches it resulted that the apartment was subject to a temporary emphyteusis and not freehold as mentioned in the agreement. However, the plaintiff was prepared to purchase this property all the same. Apart from this, there was another condition where the company bound itself to finish off the works, however, no works had taken place. The plaintiff asked the court to order the defendant company to appear Malcolm Mifsud mmifsud@mifsudadvocates.com.mt of the deed of sale. Ramel u Zrar Limited defended the action by stating that the some of the conditions mentioned in the promise of sale agreement could not be fulfilled and therefore, they were not in a position to sell her the property. Mr Justice Farrugia Sacco examined the evidence brought before the Court as, for example, Stephen Vella, the property consultant who testified that he was present for the signing of the agreement, which states that the apartment was to be finished with electricity, water supply, gypsum and aluminium doors windows and the front door. However, these works were not completed by December 2004. There was another issue that the property was not freehold. There were attempts to extend the agreement From searches it resulted that the apartment was subject to a temporary emphyteusis and not freehold, as mentioned in the agreement but this did not take place. The plaintiff testified that the directors of the company had promised and bound themselves to complete the finishing of the apartment and that it was freehold. It transpired that there was a temporary emphyteusis of 83 cents per annum for a hundred years, since the owners were the government and the Church. Notwithstanding this temporary emphyteusis, Ms Degiorgio still wanted to purchase the property. She mentioned that she wanted an extension of the agreement for the company to finish the works. Gaetano Abdilla, on behalf of the defendant company had presented an affidavit stating that he was under the impression that the emphyteusis was perpetual and not temporary. The company intended to redeem the ground rent, and this was why they mentioned in the promise of sale that the property will be sold freehold. According to Mr Abdilla, Ms Degiorgio had a problem with this. It was impossible for him to redeem the ground rent and therefore, did not want to extend the promise of sale agreement with the same conditions, once he knew of this legal problem. On Christmas Eve of 2004, he received a judicial letter demanding that the property be sold freehold and that the company should effect the sale. He replied to the judicial letter explaining what had taken place, but the plaintiff had already instituted this action. Other witnesses testified that Ms Degiorgio was insisting to purchase the apartment with the original conditions. The Court examined the law and quoted Article 1357 of the Civil Code on the effects of the promise of sale. Then Mr Justice Farrugia Sacco examined the judicial letters sent by the plaintiff where in fact it mentioned that she was aware that there was a temporary emphyteusis and was interested in purchasing the property freehold. The parties agreed that on 31 December 2004, the apartment was not freehold and that the finishing was not complete. The Court quoted from previous judgement, as Spettur S Camilleri –v– E & C Contractors Limited of 3 May 2012 which had stated that if the purchase contract cannot contain the conditions of the promise of sale agreement, the parties should be placed in the same position as they were prior to signing the agreement. This was echoed in other previous judgement such as R Micallef –v– C & C Contractors Limited decided on 4 October 2012 and A Bonnici –v– M Muscat et decided on 11 May 2012. The Court then upheld the defendant company pleas and turned down plaintiffs claim. Malcolm Mifsud is a Partner at Mifsud & Mifsud Advocates Planning Tribunal probes into sanitary merits via BEN 1 policy A development application contemplating the introduction of an additional floor over an existing two storey development was approved by the Malta Environment and Planning Authority's Environment and Planning Commission. As a result, a three-storey wall aligning a common yard, which in turn measures 2.58 metres by 1.82 metres, was created. The said yard happens to serve an underlying third party tenement located at ground floor level within the same block. The owner of the ground floor tenement objected to the said permission and lodged an appeal before the Environment and Planning Tribunal, claiming that the permitted construction at second floor should, according to law, be adequately receded from the dividing wall abutting the common yard. In addition, the objector contended that the yard dimensions are already less than what is required by sanitary regulations (in the case of two floors, the minimum yard dimensions are required to be 3 metres by 1.8 metres). For his part, applicant contended that the existing building dates prior to 1967 and is thus considered Robert Musumeci MEPAwatch to be 'legally permitted'. Against this background, applicant stated that one may not contest the merits surrounding the existing yard configuration. Applicant further maintained that the Tribunal has no jurisdiction to decide sanitary matters, in support of which, reference was made to a 1997 landmark case in the names Pater Holdings Co. Ltd. Vs il-Kummissjoni ghall-Kontroll ta' l-Izvilupp decided in 1997, where the then Planning Appeals Board had held that sanitary considerations should be decided by the General services Board as provided in the Code of Police Laws. In conclusion, the Tribunal observed that the ground floor tenement was being subjected to a reduced level of natural light and ventilation as a result of the proposed strucural interventions. For this reason, the Tribunal held that the proposed extension at second floor level was in breach of structure plan policy BEN 1, which specifically aims to safeguard the amenity of neighbouring residential developments. robert.musumeci@rmperiti.com Tribunal felt it could delve into sanitary issues within the context of structure plan policy BEN 1