Issue link: https://maltatoday.uberflip.com/i/685221
48 maltatoday, SUNDAY, 29 MAY 2016 Opinion T he First Hall of the Civil Court did not allow plaintiffs to act as administrators of a vacant inheritance, since they did not follow the correct procedure laid down in the law. This was the decision of a judgement delivered on 25 May, 2016 by Mr Justice Joseph Azzopardi in Paul Vella as curator of the vacant inheritance of Maria Calleja and Dr Karmenu Mifsud Bonnici as administrator of the inheritance of Tommaso and Concetta Cilia -v- Beatrice Catania, Anton Catania and Andre Catania. In their application the plaintiffs claimed that the defendants held on to a house in St Paul's Bay against their will and they wanted them to be evicted from this property. The Catanias filed a statement of defence with a number of pleas, the first of which was that the plaintiffs should prove their judicial interest in the action. The Court pointed out the fact that Paul Vella was acting as a curator of the vacant inheritance of Maria Calleja, while Dr Mifsud Bonnici was acting as the administrator of the inheritance of Tommaso and Concetta Cilia. According Dr Mifsud Bonnici's affidavit, the property in question formed part of the estate of Tommaso and Concetta Cilia and referred to a court judgement delivered on 18 February, 2005: Azzopardi et -v- Zammit noe. Tommaso and Concetta Cilia made a will in 1938. They divided the estate between the Tommaso family on his father's side and on his mother's side. Upon Concetta's death, her family appointed Dr Mifsud Bonnici as the administrator the property. Concetta Cilia had sold the usufruct to Joseph Catania and the former instructed Dr Mifsud Bonnici not to accept the rent. Joseph Catania had a preference to purchase the property. Without informing anyone Joseph Catania sold his right to his brother Paul. The plaintiffs are contesting the fact that Joseph Catania could not convert his title to that of owner of the property. Dr Mifsud Bonnici had testified that the inheritance was vacant since the 1960s. The property was identified in the statement of assets of Concetta Cilia and in a judgement which the defendants were not a party to. On the other hand Beatrice Catania testified that her husband went to live with Joseph Catania in the late 1980s. She always understood that the property was of Joseph Catania, in fact he promised to his brother. She explained that her husband was tight fisted and that no maintenance works were carried out. After her husband's death her children inherited the property and she continued to live in it. The issue on her right to live there arose when she received a notice of judicial sale in September 2012. Mr Justice Azzopardi examined the legal point on the judicial interest of the plainitffs. Paul Vella explained that he was nominated as curator of the vacant inheritance of Maria Calleja in the court case Azzopardi –v- Zammit. The Court was authorised to nominate him in terms of the Article 903, 904 and 905 of the Civil Code which reads: "903. An inheritance, until it is accepted, shall be deemed to be vacant: and, on the demand of any person interested, the court shall, saving the provisions of article 886, appoint a curator, as provided in the Code of Organization and Civil Procedure. 904. (1) The curator of a vacant inheritance shall, first of all, make up an inventory thereof. (2) The curator shall exercise and prosecute all actions pertaining to the inheritance: he shall answer all claims brought against it, and shall administer the property thereof, subject to the obligation of depositing any money which may be found in the inheritance, or the proceeds of the sale of any movable or immovable property, and of rendering an account to the person entitled to demand it. 905. The provisions of the last preceding article shall not apply to any curator appointed solely for the purposes of article 929 of the Code of Organization and Civil Procedure." Article 929 of the Code of Organisation and Civil Procedure states that the Court may appoint curators in the superior courts for absent persons and persons under age. The Court held that the scope of this article cannot be extended. In fact Paul Vella is basing its appointment on another case. Article 512 of the Code of Organisation and Civil Procedure states that a person who would like to be an administrator of a vacant inheritance has to file an application to the Court of Voluntary Jurisdiction. In this case even Dr Karmenu Mifsud Bonnici admitted that he did not file such an application. In a previous judgement Melita Marine Ltd v International Custom Service Yachting Ltd decided on 13 April, 2011 held that the Code of Organisation and Civil Procedure is a law of public order and should be observed "as litteram". Therefore, one can conclude that this special procedure has to be observed. An administer has to appoint according to this procedure. The Court concluded that the two plaintiffs did not observe this procedure and therefore upheld the plea and dismissed the case. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Administrators of a vacant inheritance have to follow appointment procedure A planning application for the sanctioning of an open staircase located in a front garden together with the roofing of part of the site curtilage at basement level was turned down by the Environment and Planning Commission. This application was also subject to strong objections from a co- owner whom applicant notified by way of a registered letter stating his intentions to sanction the illegalities in the front garden. Nonetheless, the Commission based its conclusions on planning merits and found that the proposal runs counter to policy 11.3 of DC 2007 since the number of risers exceeded that permitted by policy. In fact, the policy allows a maximum vertical height of 1.6 metres with respect to pavement level. Moreover, the Commission maintained that the proposal detracts from the aesthetic character of the building and the streetscape. (The dwelling is located in Triq Ta' Xmiexi, Msida.) Following the decision, the applicant filed an appeal before the Environment and Planning Review Tribunal. In his submissions, the applicant contended that the 1.6 metre rule is not applicable in his case since a minimum of 14 risers are required to enable access over a two metre roofed semi basement. Concluding, the applicant countered that "the steps 'as built' do not detract from the character of the building", adding that open staircases may be appropriate in certain circumstances as part of certain design solutions or architectural styles. The objector also took part in the appeal proceedings. He specifically recalled that he was a co-owner of the front garden and went on to remind the Tribunal that he had not released his consent for the application to proceed. As to this point, the Authority maintained that an incorrect declaration of ownership, 'in and of itself ', does not necessarily carry a material bearing on the processing of the application. In its assessment, the Tribunal observed that the applicant had, in this case, formally notified the objector (qua co-owner) with his intentions to submit the planning application. It thus follows that the applicant did not enjoy an absolute title and third party consent was therefore needed. Furthermore, the Tribunal noted that the applicant had submitted a written declaration to the effect that the co-owner granted the required consent. Having said that, it was very clear that the objector (namely, the co-owner) did not give applicant the 'go ahead ' to proceed with the application, so much so that the latter was participating in the appeal proceedings. Against this background, the Tribunal abstained from probing further into the planning merits of the appeal. 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 Consent from recognized co-owners 'a must' Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Clearly, applicant did not enjoy an absolute title