Issue link: https://maltatoday.uberflip.com/i/712794
44 maltatoday, SUNDAY, 17 JULY 2016 Opinion O n 27 May, 2016, the Court of Appeal confirmed the decision of the First Hall Civil Court in Granata -vs- Commissioner of Lands. The Court held that the plaintiff did not have a right to an action of spoliation in this particular case, although the locks of the boathouse, which she used to enjoy on lease, were removed and changed against the plaintiff 's will, depriving her of its possession and enjoyment. Granata claimed that the Court was not correct in its interpretation of Article 3(1) of the Land (Compulsory Eviction) Act since such interpretation was depriving evicted persons from exercising the action of spoliation in terms of Article 535 of the Civil Code. However, the Court of Appeal disagreed and explained that since eviction had taken place in line with Article 1568 of the Civil Code there was no right to institute an action of spoliation. This is because eviction took place after the official letter had been received on 4 January, 2013, and consequently, on 3 October, 2013, the plaintiff was allowed 20 days to evict the boathouse in question The Court referred to Tonna -vs- Commissioner of Lands, delivered on 18 July, 2012, and explained that upon sending the official letter to the plaintiff, the latter no longer enjoyed a title of lease as this would have been effectively terminated by it. Insofar as such termination is allowed by law and executed in the manner specified by it, the Civil Code does not require the Court to inquire as to why the lease had been terminated. In this case, the government should not be treated any differently from any other owner of a tenement seeking recovery of the said tenement, upon termination of the lease. The Court thus agreed with the First Hall Civil Court, in that the action of spoliation is not permissible with respect to an action already executed in terms of the Land (Compulsory Eviction) Act. The action of spoliation may neither be exercised before nor after the execution of action for eviction although a person may naturally still avail himself of any other action available under any other law. As explained in Vincenzina Cassar et -vs- Annetto Xuereb Montebello, delivered on 28 May, 1956, our jurisprudence has always been consistent in its interpretation of these laws. Our Courts have always held that an action of spoliation is one of public order, solely and exclusively aimed at impeding a person from taking the law into his own hands so that the Courts are rightly resorted to instead. In short, whenever a person in possession suffers spoliation, the Court must always order reintegration, insofar as possession is vitiated, even if the person committing the spoliation against the possessor is the true owner of the tenement. However, in this case, the defendant did not simply take the law into his own hands but rather he evicted the appellant by invoking Article 3 of Chapter 228. This Article in fact gives the Commissioner absolute discretion so as to order eviction of any person occupying a piece of land when the latter is being occupied: by a person without any title; by encroachment; or after the expiration of a period of time as specified in Article 2 and in the contract of lease. In fact, the defendant sent a letter to the plaintiff on 4 January, 2013, in line with Article 1568 of the Civil Code, in which he informed the plaintiff that since the lease was going to terminate on 30 June, 2013, he had to return the keys to the Department of Lands upon its termination. When the plaintiff failed to do so, an order of eviction was issued on 3 October, 2013 upon which the appellant no longer enjoyed a title of lease. The Court also disagreed with the plaintiff and argued that the defendant had every right to issue a mandate for eviction as he was still the administrator of the property, albeit only factually, until this is passed on to its owners. This is further proven by the fact that the same plaintiff was paying rent to the defendant. Finally, the Court came to the conclusion that the provisions of the Act in question exist so that the defendant may make use of the law without any delay and without uselessly incurring or exposing himself to damages. Insofar as the dispositions of law are observed, the defendant cannot face an action of spoliation on the ground of protecting public order, when the existence of the provision invoked is there to serve that very same purpose. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates An action of spoliation is one of public order T he owner of a street level garage submitted a planning application to convert the garage into a commercial outlet. The garage, occupying an area of 50 square metres, forms part of a multi- storey complex in Zejtun. The dwelling on the upper level pertains to a different applicant who had acquired the overlying air space independently of the garage and obtained a planning permit. The Planning Authority turned down the applicant's request on the basis that 'the proposed development will remove the existing parking spaces for the building and so it would conf lict with Structure Plan policy TRA 4 and PA circular 3/93 which seek to ensure that appropriate provision is made for off-street parking'. In other words, the Authority reasoned out that the conversion of the garage into a commercial outlet would remove a parking space which is required to cater for the dwelling above, regardless of the fact that the garage and dwelling pertain to different owners. The Authority's decision was subsequently confirmed by the Environment and Planning Review Tribunal on appeal, following which another appeal was lodged before the Court of Appeal (Inferior Jurisdiction) on a 'point of law'. In turn, the Court found in favour of the appellant who insisted that the owners of the garage and the overlying apartment were not the same. The Court made it clear that the Tribunal was obliged to investigate whether the dwelling on the upper f loors was approved on the premise that the applicant's garage was being considered in terms of the required parking provision in the dwelling application. In other words, the Court held that the Tribunal was in that case obliged to ascertain whether the garage owner gave his consent in the 'dwelling application'. Against this background, the Court ordered the Tribunal to review its decision in line with the above legal rationale. Upon reassessment, the Tribunal confirmed that the appellant's garage was built prior and independently of the overlying dwelling. Moreover, the Tribunal found that the garage owner failed to give his consent to the applicant who subsequently obtained a permit for the overlying dwelling, and which in the opinion of the Court was in such case necessary. In the circumstances, the Tribunal concluded that the garage and the dwellings should therefore be assessed independently. In addition, the Tribunal observed that the garage f loor area amounts to 50 square metres and thus 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. Robert Musumeci When 'loss of parking' cannot be claimed Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Applicant who subsequently obtained permit for overlying dwellings required consent of the garage owner Maria Regina Granata v. Lands Commissioner