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MT 27 March 2016

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46 maltatoday, SUNDAY, 27 MARCH 2016 Opinion T he First Hall of the Civil Court on 22 March, 2016 in John sive Juanito Pullicino –v- Carm Lino Scerri, laid down that a co-owner may force another co-owner to pay his share of work in a property owned jointly, as long as these works are urgent and necessary. Pullicino in his application held that the parties in the case own a property in Gharghur. This property needed urgent repairs and maintenance in the common parts, due to wear and tear and because of the defendant Scerri's negligence. The plaintiff informed the court that he had paid in all €50,000. Pullicino claimed he did not find any cooperation from Scerri when doing these works, and asked the court to order the defendant to pay half of the costs incurred. Scerri replied by first stating that he was in agreement that they owned half the garage, but he did not own half of the rest of the property. Part was exclusively owned by him, while another part belonged to the plaintiff, sharing the common parts. Scerri denied being asked to carry out these works, being merely informed that there was need of some maintenance works. In fact, he engaged an architect to suggest how the works should have been carried out but these suggestions were brushed off. In fact Scerri was never informed that these works were going to take place. Mr Justice Mark Chetcuti, who delivered the judgement, appointed a technical expert who presented a report to the court. The conclusions of the report were purely technical and supported the plaintiff 's claims. The court-appointed expert listed the works which were carried out in the common areas and the estimated costs. The report informed the court that damage was due to lack of maintenance and if the works had not been carried out, the cost would have been higher. These were necessary expenses and were to the benefit of both parties. From the acts of the case the court expert calculated that defendant should pay €13,803 to the plaintiff for these works, but there are more works which have to take place. The court expert suggested that the defendant also be allowed access to all the common parts to be able to inspect the works. The judgement mentioned some corrections and adjustments which were made. Mr Justice Chetcuti pointed out that Article 490(2) of the Civil Code, states that "the shares of the co-owners shall, unless the contrary is proved, be presumed to be equal". Article 492 stipulates: "the expense necessary for the preservation of the common property, saving the right of any of such other co- owners to release himself from his liability therefor by abandoning his right of co-ownership." The Court held in its judgement that there is no contestation that the works the plaintiff carried out were in the common areas and that he is expected to be refunded half of what he spent. The defendant is not objecting to paying expenses however, only if they were necessary and urgent. The Court pointed out that there was no contestation that part of the works were urgent. The contestation was on which works were in fact urgent. The defendant raised the issue that there was no written estimate of costs and neither were receipts presented. For this the court explained that the evidence of payment does not need be in writing, but it is sufficient if the Court is convinced that payment was made. Regarding VAT, it is the plaintiff 's responsibility to pay VAT for the works he had ordered. If VAT was not paid, then the plaintiff would have to pay it. After seeing the court expert's report and the acts of the case, the court concluded that the works which were carried out were necessary. As for liquidation of damages, the court again followed the report's recommendations and ordered the defendant to pay €13,803 for works carried out in the common parts. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A co-owner has to pay his share for urgent works A n outline planning application contemplating the internal demolition of an existing building in Strait Street, Valletta, and the subsequent construction of a multi-level office block was turned down on a number of grounds. The Malta Environment and Planning Authority held inter alia that "the proposal would be an encouragement to promote the continuation of conversion of buildings into office use in the Valletta/Floriana Peninsula", and thus runs counter to paragraph 10.3 of the Structure Plan and Policy COM2. In addition, the Authority found that the office block, once in operation, would generate unacceptable additional on-street car parking and in turn, would not be in the interest of the amenity of the area. Moreover, the proposed demolition works were found objectionable in terms of Structure Policy UCO9, which places a general presumption against the demolition of buildings in Urban Conservation Areas. The Authority concluded by stating that the replacement building does not represent "good urban renewal". As anticipated, the applicant appealed to the Environment and Planning Review Tribunal (EPRT) against the decision. In his appeal, the applicant remarked that his application was left pending for over 16 years, during which period the case officer "never bothered to visit the site". Furthermore, the applicant contended that his proposal did not amount to a "change of use" since the premises served as an office complex in the past. On his part, the MEPA case officer insisted that it was the applicant himself who had, way back, consented to have the process kept in abeyance pending the finalization of the Grand Harbour Local Plan. As for the merits of the case, the officer reiterated that the proposed demolition works ran counter to Structure Plan policies UCO6 and UCO9. With regard to the use, the officer maintained that the premises were presently occupied by squatters. In its assessment, the Tribunal observed inter alia that the site is located in the primary town centre of Valletta, where "development of new office space will only be permitted if the office space is intended to form part of a ministry or government department or the proposed office involves the conservation, through adequate rehabilitation and reuse, of a historic building." Against this background, the Tribunal concluded that the proposed office use was acceptable subject to the existing façade, the hall way and the spiral staircase being retained, conserved and incorporated within the new development. Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a Law Degree Robert Musumeci MEPAwatch Restoration works and office use in Valletta Malcolm Mifsud for urgent works for urgent works for urgent works Tribunal insisted that the existing façade, the hall way and the spiral staircase be retained The shares of the co-owners shall, unless the contrary is proved, be presumed to be equal

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