Issue link: https://maltatoday.uberflip.com/i/739032
48 maltatoday, SUNDAY, 16 OCTOBER 2016 Classifieds T he First Hall of the Civil Court accepted a plea by a defendant company to allow into suit the previous owners of a property, because they could have an interest in the action. This was decided in a judgment delivered on 10 October, 2016, by Ms Justice Anna Felice in a case Joseph Zammit and his wife Jeanette Zammit Gia Caruana -v- Central Mediterranean Development Corporation Limited. The Zammits in their application explained that they purchased land in Birzebbugia in September 1994 measuring 211 square metres. In a separate judgement Joseph Pirotta et -v- Joseph Zammit et decided on 25 October, 2011, the court decided that according to the experts engaged for that case, 130.5 square metres belonged to Pirotta and Zammit was ordered to remove the works that were being carried out. Therefore, what the plaintiffs had purchased was in fact not all theirs and the defendant company could not have sold that part of the land. However, when the company had sold to Zammit, it guaranteed peaceful possession of the land sold. The above mentioned judgement disturbed their peaceful possession and in fact they suffered damages. The Zammits asked that the contract of purchase of the land be rescinded. Central Mediterranean Development Corporation Limited filed their statement of defence, stating that the action was time barred according to Articles 1407 and 2153 of the Civil Code. The company also argued that the previous owners of the land, Salvatore Schembri and the heirs of Nazzareno Dalli, be called into the suit. Ms Justice Anna Felice dealt with the pleas and quoted article 1407 and 2153 of the Civil Code: "1407. (1) The action of the seller for an increase of the price, and the action of the buyer for a diminution of the price or for repudiation of the contract shall be barred by the lapse of two years from the day of the contract." "2153. Actions for damages not arising from a criminal offence are barred by the lapse of two years." They considered that the defendant company had given a guarantee for peaceful possession, when it sold the property to Zammit, however, the judgement of 25 October, 2011, had disturbed this peaceful possession. Article 1409 of the Civil Code states: "1409. Although no stipulation of warranty has been made in the contract of sale, the seller is in law bound to warrant the buyer against any eviction which deprives him, in whole or in part, of the thing sold, and against any easement or burden on the same, claimed by others, and not stated in the contract." Then Article 1423 reads: "1423. (1) In all cases where a shorter period is not fixed, the action for breach of warranty against eviction shall be barred by the lapse of two years to be reckoned from the day on which the judgment against the buyer has become final and absolute." The Court agreed with the plaintiffs, in that, without the court judgement establishing that part of the land was no longer theirs, they would not be in a position to file this action. The Court then decided that the action was not time barred. Ms Justice Felice then considered whether she should accede to the request that the previous owner of the land should be called into suit. The Court quoted a previous judgement, Joseph Riolo pro et noe -v- Carmel Muscat, decided on 15 March, 1991 by the Court of Appeal, which stated that one can be called into suit, since actions are instituted against a number of defendants, but others who may have an interest may be left out of the action and are not in a position to defend their interest. If there is an interest, the Court may allow a joinder if required. In another Court of Appeal judgement Bank of Valletta plc -v- Anna Calleja, of 8 January, 2010, the Court may allow an interested party to join the action if that party can contribute by giving facts on this issue. In this case the defendant company did guarantee peaceful possession to the plaintiffs and according to Lec Limited -v- Tabbingtons Limited decided by 19 April, 2012, the call into suit of the previous owners, is done in order to protect the interest of the party that may lose the action. The Court then ordered that the heirs of Salvatore Schembri and Nazzareno Dalli be called into the action, before it heard the merits of the case. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A planning application to convert part of a garage into a cosmetics store was turned down by the Environment and Planning Commission. The premises in question are located within the designated residential area of Swieqi. The Commission pointed out that 'the proposed store has a deleterious impact on the amenity of the area in which it is located and therefore also runs counter to policy NHHO 01 of the North Harbours Local Plan and SPED Thematic Objective 6.1 and Urban Objectives 3.5 and UO 4.2. 2.' Additionally, it was held that the proposal fails to make adequate provision for off- street loading and unloading, thus having 'an adverse impact on the free and safe f low of vehicles on the adjoining highway and will not be in the interests of pedestrian safety or convenience.' In order to support the said arguments, the Commission made reference to SPED Thematic Objective 6.1 and Urban Objectives 3.5 and 4.2. In reaction, the applicant filed an appeal before the Environment and Planning Review Tribunal. In his submissions, the applicant argued that only part of the premises were to be used as a 'cosmetics store'. More so, the appellant insisted that he was willing to abide by any condition which the Tribunal deems fit to impose, whilst pointing out that the frontal part would still be used as a garage for private vehicles. Moreover, the applicant made reference to a number of commercial outlets located in the vicinity, all which were granted a planning permit. In reply, the Authority reiterated that 'the development as proposed breaches the relevant policies'. The case officer made express reference to policy NHHO 01 of the North Harbours Local Plan, adding that 'the development under appeal is not interconnected with a residential unit and cannot be considered to be a store for domestic purposes'. Even so, the case officer maintained that the proposed drawings fail to include a proposed loading/unloading bay 'and therefore the activity will have an adverse impact on the free and safe f low of vehicles on the adjoining road, thus creating an inconvenient hazard to pedestrian safety'. On the other hand, should the loading/unloading activity take place within the garage, the Authority opined that 'this will replace the parking spaces required for the overlying dwellings thereby going against SPED Policies'. With regard to the permissions mentioned by the appellant, the Authority highlighted that the said permits were issued prior to the Local Plan whereas the relative uses (namely, beauty salon, domestic stores, clinic, video/DVD rental and a grocer) are considered to be 'useful amenities to the area'. In its assessment, the Tribunal made reference to policy NHHO 02 of the North Harbour Local Plan, which specifically lists the types of acceptable commercial uses within residential areas. Concluding, the Tribunal observed that commercial stores do not feature in the said list and went on to reject the appeal. robert@rmperiti.com Dr Musumeci is a perit and a Doctor of Laws Cosmetics store rejected in Swieqi Robert Musumeci Stores are not permitted in residential areas Anyone who may have an interest may be called into suit Malcolm Mifsud may be called into suit may be called into suit may be called into suit mmifsud@mifsudadvocates.com.mt