Issue link: https://maltatoday.uberflip.com/i/591015
52 maltatoday, SUNDAY, 25 OCTOBER 2015 Opinion T he Magistrates' Court in Gozo held that a latent defect claim following a purchase of a property in 1994 is time-barred and therefore, had to be turned down. This was decided by Magistrate Dr Joanne Vella Cushieri in John Vella Laurenti –v– Michael Refalo and Marie Louise Refalo. In his application Vella Laurenti had purchased a property in Xaghra, Gozo on 20 December 1994, but in November 2010 a number of defects started appearing, which did not appear on signing of the contract. He asked the court to decide that property was effected by latent defects and asked for the court to order a refund of part of the purchase price. The Refalos held in their statement of defence that what the plaintiff is alleging does not amount to latent defect at law and even if there were defects these were not latent. The defendants claimed that the action is time barred according to Article 1407 of the Civil Code. Magistrate Vella Cuschieri examined the evidence produced. The plaintiff purchased the property on 20 December 1994 in shell form. He testified that before purchasing the property there was always crushed stones. The defendants disagreed and held that the property was handed over clean. The plaintiff claimed that at the end of 2010, some defects appeared and were listed by his architect Herbert Debono. According to the architect water seeped down to the apartment below that of the plaintiff. The architect ordered to have the tiles removed and discovered that there was a crack. He then filed a judicial letter asking the defendants to liquidate damages. In order to remedy the situation, the plaintiff spent €1634.60. The defendants held that at the time when Vella Laurenti purchased the apartment, there were no stones on the ground and therefore, he crack should have been visible. Furthermore, the Refalos argued that these cracks were in fact necessary. As regard to the plea of prescription, the court first analysed the submissions of the defendants, who pointed out that before 2010, the plaintiff had grouted the f loor tiles of the veranda, but received complaints from the underlying property owners that water was seeping in. This took place for a number of years. Therefore, the defect existed for a number of years. The court case was filed on 3 November 2011, four years after September 2007 when Vella Laurenti knew of that there was a problem. According to Article 1431(2) of the Civil Code, the prescriptive period commences when the latent defect is known. The Court commented that although it could have been probable that Vella Laurenti was unaware of the defects on the date of purchase, he was informed by the previous owner that there was a problem of water seepage. In these circumstances, he could have engaged an architect to make the verifications necessary before signing the contract. Since four years passed from when the defect could have been discovered, the action was time barred. Magistrate Vella Cuschieri, then entered into the merits of the action in terms of Article 1427 of the Civil Code, where the plaintiff is requesting to keep the apartment but to be refunded part of the price. The plaintiff argued that the refund of the price should match the damages sustained. The Court disagreed. In a previous judgement Carmelo Muscat –v- Martin Imbroll of 1 February 1995, the part of the price which should be refunded should match the difference in value of the property with and without the defect. The Court then moved to turn down the claim and declaring the action time barred. Av. Malcolm Mifsud Partner Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application for the "change of use from an apartment (forming part of a multi storey block) to an office" in Ta' Xbiex was initially turned down by the Environment and Planning Commission. The refusal report held that "the proposed development is unacceptable since it does not comply with policies 15.4 of Development Control Policy & Design Guidance 2007." As one would have anticipated, applicant appealed the decision before the Environment and Planning Tribunal, insisting that "the existing apartment block includes both licensed offices and residential apartments." The now appellant highlighted that "the predominant use of the existing flats is commercial and professional offices", adding that one could therefore not "understand the argument that this application does not comply with policy 15.4 of Development Control policy & Design Guidance 2007". Appellant further argued that the said policy was specifically intended "to avoid the introduction of commercial uses in existing blocks solely with residential units" and cannot thus be extrapolated in situations where an existing block features "more flats used for commercial purposes than flats used for residential purposes." More so, appellant remarked that the street in question fronts a commercial area, where the majority of flats are already used as offices any way. In his conclusive remarks, appellant made reference to two planning permits by virtue of which the Authority approved the conversion of two independent apartments into offices in a nearby block. For its part, the MEPA stood firm, reiterating that "Policy 15.4 of the Policy and Design Guidance 2007 seeks to ensure a separate access to commercial development in buildings containing also dwellings." The request was therefore unacceptable since the office would be accessed from "a common entrance shared between both commercial and residential units." The case officer insisted that the proposed change of use would therefore result in the intensification of the shared access, regardless of any existing commitment. With regards to the permits quoted by appellant, the case officer maintained that, in those cases, "the entrance to the block shares an entrance with a legally approved much larger computer school". In its assessment, the Tribunal made immediate reference to Policy 15.4, which expressly states that "MEPA will not normally grant permission for commercial development in buildings also occupied by dwellings where a separate access to the commercial use cannot be provided." The Tribunal however noted that this policy does not provide an "a priori" exclusion and should therefore be interpreted in the light of the introductory "flexibility provisions" contained in the same Policy and Design Guidance 2007. The Tribunal concluded that one should have full regard to the site circumstances, notably the surrounding office commitment, which in this case allow for further intensification. Against this background, the Tribunal ordered the Authority to issue the permit. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters degree in conservation and a law degree Office approved in a block of Ta' Xbiex apartments Vella Laurenti had purchased a property in Gozo, but years later a number of defects started appearing When a latent defect claim is time-barred Robert Musumeci MEPAwatch Site circumstances allow for further office intensification