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MT 24 April 2016

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48 maltatoday, SUNDAY, 24 APRIL 2016 Opinion T he Court of Magistrates (Gozo) held in its judgement of 19 April, 2016 in Natal Fava -v- Nadia Said, that compensation arising from an actio de in rem verso is to be refused not on the basis that an unjustified enrichment took place during a state of cohabitation but rather on the basis that such claims were unfounded. Following 10 years of cohabitation, Natal Fava and Nadia Said terminated their relationship. In fact, it seems that both parties had been previously married and the defendant terminated her cohabitation with Fava when the latter did not obtain a divorce from his spouse. The plaintiff instituted proceedings against Said on the basis of unjustified enrichment, claiming that the defendant had been enriched by means of money he passed on to her which she used for the purpose of buying a car and other various objects. He also claimed reimbursement for items of gold given by him as gifts to the plaintiff as well as compensation for payments he allegedly made when carrying out improvements to the apartment pertaining to the same defendant in Victoria. Said however argued that this action may not be instituted since the payments in question were made during a state of cohabitation. It has been illustrated multiple times by jurisprudence that cohabitation constitutes an illicit cause and thus the plaintiff 's action may not be successfully put forward. Nonetheless, with changes in social behaviour over time, cohabitation is no longer viewed as illicit, particularly with the introduction of laws on divorce and civil unions. This is illustrated in more recent jurisprudence and in fact, the First Hall Civil Court in Henry Saliba -v- Denise Caruana on 6 April, 2006 explained that extramarital relationships were deemed to be illicit at a time when it was believed that such relationships went against proper conduct or public order and were thus prohibited by law. However, such relationships are no longer deemed to be contrary to public order or the general interest. It would be unjust for any party to avoid carrying out its obligations by stating that the relation of cohabitation he was in previously, was an illicit one. In this case the Court explains that a distinction here must be made between on the one hand, business conducted between the parties when such business is directly related to the state of cohabitation, in the sense that cohabitation is the cause for business (causa obligandi), and on the other hand, circumstances in which the cohabitation was simply an occasion throughout which the business was carried out (causa obligationis). In the former, the obligation is null, but not so in the latter case. Moreover, the Court also explained that gifts or other donations freely given between the persons involved are also not considered to constitute an illicit cause as long as it is shown that that business was not subject to the conditions that the relationship of cohabitation is to resume. In this case, the Court did not believe it was necessary to go into detail as to the relationship between the parties as it believed that the payments between the parties were clearly not based on the condition that cohabitation between them is resumed but rather they were simply made during a situation of cohabitation. The Court then proceeded to analyse the actio de in rem verso instituted by the plaintiff. This action is provided to those persons in cases where an action ex contractu may not be instituted. It is also a subsidiary action in that it cannot commence unless the plaintiff has no other remedy or has been otherwise unsuccessful in bringing the action against the person who has been unjustly enriched, such as when the debtor who is bankrupt or has otherwise left the jurisdiction. It was also pointed out by the Court that the action is an equitable one in that a person should not be unjustly enriched to the detriment of others. Thus, the limits of this action are the extent of the advantage a third person would have obtained by means of the expenses made by the plaintiff, and it has the aim to restore an equilibrium between the patrimony of the enriched person and that of the person which would have incurred expenses to make this happen. Thus for an actio de in rem verso to be successfully instituted one would have to prove the following elements as illustrated in the Manuale de Diritto Privato: 1. The loss of wealth from the patrimony of one of the parties, 2. A link between the reduction in wealth of one party and the enrichment and benefit on the part of the other, 3. No reasonable explanation as to the unjustified enrichment of one party to the detriment of the other. 4. Enrichment by the party accepting an object or service from another. After examining the evidence brought before it with respect to the payments made by the plaintiff in favour of the defendant, the Court concluded that Fava did not sufficiently prove any unjustified enrichment but rather held that the plaintiff 's testimony was more credible as to how payments were made during their period of cohabitation. Furthermore, it cannot be held that there was unjust enrichment in the case of objects which were allegedly burnt by the defendant since she would not have derived any benefit from them. Rather the plaintiff should have instituted an action for damages. In fact, it seems that these proceedings were merely instituted by the plaintiff so as to get back to the defendant for terminating their relationship. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Court rules on claims following cohabitation split A planning application contemplating the conversion of a block of apartments into a language school together with an extension was approved by the Malta Environment and Planning Authority. The site is located on the periphery of St Julians residential zone, close to the secondary town centre. Consequently, a number of objectors lodged an appeal before the Environment and Planning Review Tribunal, maintaining that the site in question is primarily characterized by residential use so that the proposed use (in this case, a language school) is considered incompatible. Furthermore, the objectors insisted that "in a planning system where decision- makers can use their discretion with respect to the application or otherwise of approved policy, these same decision makers would be expected to justify their positions". In this case, it was contended that the Authority failed to provide adequate justification in support of its decision. Furthermore, it was pointed out that the Authority relied on the principle that uses which are not usually allowed in residential areas may be justified on the pretext of legitimate commitment. Nonetheless, the objectors contended that the said principle is "legally questionable" since it does not extend to privileged locations, such as villa areas. Moreover, it was submitted that "the layout of the proposed development indicates that the school would be made up of 10 classrooms and one administrative office space including a reception desk/area." On this basis, the appellants stated that the building does not have the required internal parking facilities to accommodate the parking demand. Even so, the objectors insisted that the permit was approved in the absence of a parking demand survey of the area. Even so, appellants highlighted that in our planning system, the decision-maker is not empowered to delve beyond the limits of the plans/policies when other material considerations indicate that such plans/policies are, for instance outdated, unsuitable or not sufficiently researched. In concluding, it was highlighted that the Authority "acted unlawfully in the manner that it used the discretion permitted under the Act." For its part, the Authority acknowledged that the proposed use is not in line with Policy NHSO05 of the North Harbour Local Plan, which states that the rehabilitation and redevelopment of language schools should only be in principle carried out within town centres. That said, the Authority noted that the area in question is already heavily committed to more intensive land uses which include bars and hotels. In this context, the permit was approved on the basis of surrounding legitimate commitment. In conclusion, the Authority underlined that "it enjoys a wide discretion in assessing the relevance or otherwise of any considerations which are ancillary and consequential to a proposal". In its assessment, the Tribunal made reference to Policy NHSO05 which clearly stipulates that in the case of language schools, "locations outside town centres will only be considered provided that it is shown that no inconvenience to nearby residents will result." The Tribunal considered that the area in question was not heavily committed with commercial use as previously purported by the Authority. Against this background, the Tribunal decided to revoke 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. Robert Musumeci Tribunal revokes permit for language school Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Decision organs enjoy a wide discretion in assessing considerations which are ancillary and consequential to a proposal

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