Issue link: https://maltatoday.uberflip.com/i/608340
52 maltatoday, SUNDAY, 29 NOVEMBER 2015 52 Opinion T he First Hall of the Civil Court, in its judgement of 25 November, 2015 in the names Rose Bezzina, Martin Baldacchino, Rita Fenech, Giorgia Zammit, Carmen Cassar, Marvic Baldacchino and Antonia Debono -v- Stefan Apap, held that the party claiming he/she has a valid title of lease over a property must prove that he/she has all the requisites mentioned in Article 1531(f ) of the Civil Code. The plaintiffs in their application explained to the court that they had transferred a property in Qormi to Charles and Anna Apap by way of emphyteusis. Public registry searches showed that this contract was not registered and therefore the emphyteusis does not exist. However, after their death, the property was transferred under the title of emphyteusis to the defendant, Stefan Apap. This, according to the plaintiffs, was not done by a public deed and therefore was invalid, according to Article 1508 of the Civil Code. The defendant was called upon in two judicial letters to return the property, but he failed to do so. The plaintiffs asked the court to declare that the defendant was occupying the Qormi property without a valid legal title and to order him to vacate the premises. Stefan Apap pleaded that it is the plaintiffs who have to prove that they transferred the property in question to Charles and Annie Apap under the title of emphyteusis. He also claimed that he was occupying the premises according to law. Mr Justice Joseph Azzopardi in his judgement held that this action was one where the plaintiffs are claiming that they have the original title. The contract signed by Charles and Annie Apap was in fact presented in court and the court commented that the plaintiffs' application was not precise, since the contract in question was in fact registered. Notwithstanding these errors, the court pointed out that the action may proceed even if the premises are different and as long as what is asked from the court is clear. Although the premises of the application were not correct, the requests to the court were clear. The plaintiffs were asking the court to order the defendant to vacate the premises. The facts of the case showed that the Apaps had acquired the premises by temporary emphyteusis for 19 years. When the concession was terminated in 1990, the ground rent was still being paid. This meant that the emphyteusis was converted into a lease and the receipts ref lected this. The contracts presented left no doubt in the judge's mind that the plaintiffs are the owners of the property in question and they had received the rent before the Apap couple died. Stefan Apap is claiming that he has a valid title to live in the premises in terms of Article 1531 of the Civil Code. Here the Court had to analyse whether he satisfies all the requisites listed in this Article. The tenant died after 2008. Furthermore the law also imposes a means test in accordance to Legal Notice 463/2011. Since the defendant is claiming that he has a legal right to occupy the premises, he has to prove that he satisfies the means test. Since he is alleging this, he has to prove it, however, in this particular case he failed to do so. As a consequence Mr Justice Azzopardi upheld the plaintiffs' requests and ordered the defendant to vacate the premises within three months. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A n enforcement notice was issued by the Malta Environment and Planning Authority against an owner of a catering establishment in St Paul 's Bay, where it was alleged that a chimney duct was installed in the property without a planning permit. In this case, the MEPA had issued a planning permit for catering use in 2007 but it was eventually found that the ventilation system shown in the approved permit drawings was installed in a different location. The owner lodged an appeal against the enforcement notice before the Environment and Planning Tribunal, asking for the notice's revocation. In his appeal submissions, it was explained that the chimney stack mentioned in the enforcement notice had in fact been installed for a long time prior to 2007 (when the permit for catering establishment was issued). Appellant thus contended that the chimney was "legal " since it had stood for 30 years. The Tribunal inspected the property and saw that two ventilation ducts had been installed independently of each other. The Tribunal confirmed that one of the systems was actually shown in the 2007 permit drawings whereas the chimney referred to in the appealed notice was not evident in the drawings. In its assessment, the Tribunal concluded that the enforcement notice was issued correctly and confirmed its validity. In reaction, the appellant lodged an appeal before the Court of Appeal (Inferior Jurisdiction), stating that the Tribunal ignored the fact that the "illegal " chimney had been in place for 30 years. Nevertheless, the Court held that it would not enter into such assessment, since it was up to the Tribunal to delve into any evidence gathered in the process. Moreover, the Court referred to the Albert Satariano judgment and observed that an intervention which is not shown in subsequent permits shall be construed as "not covered by a permit", regardless of its history. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law. Tenant must prove all requisites of Civil Code to prove a valid title Robert Musumeci MEPAwatch An intervention which is not shown in subsequent permits shall be construed as "not covered by a permit", regardless of its history The contracts presented left no doubt that the plaintiffs are the owners of the property in question and they had received the rent before the Apap couple died Chimney illegal because not shown in latest permit Malcolm Mifsud mmifsud@mifsudadvocates.com.mt Civil Code to prove a valid title mmifsud@mifsudadvocates.com.mt Civil Code to prove a valid title Civil Code to prove a valid title