Issue link: https://maltatoday.uberflip.com/i/893950
50 maltatoday SUNDAY 29 OCTOBER 2017 T his was held in a judgement delivered by Mr Justice Silvio Meli on 24 October 2017 in Vincent Arnaud v Salvina Abela. In his application Arnaud explained that his mother lived in a property in Valletta and he was given the key. However, when his mother died, his sister Salvina Abela changed the locks, not allowing him to enter. He asked the Court to order the defendant to allow him access and to allow him to change the lock. Abela filed a statement of defence where she claimed that Arnaud had no right to change the property, since it was a rent property. She also claimed that Arnaud was using this action to take possession of the property. Mr Justice Meli analysed the facts of the case. In the evidence produced, the property was part of a complex of rooms in which seven families lived, but all shared one common electricity meter. When the mother died in 1989, the defendant did change the locks and the plaintiff was not allowed in. The plaintiff accused his sister of taking movables from the property, which were part of the inheritance. In his submission, the plaintiff told the Court that this was a possessory action which was intended to give him access to the property. The Court quoted Martin Vella et v Loreta Borg et decided on 3 May 2012, which held that the Civil Code provides for two possessory actions. In Article 534 it lays down an action where the possessor will remain in possession while subject to molestation, while Article 535 of the Civil code regulates the action of spoliation. IN fact Article 534 reads: "Where any person, being in possession, of whatever kind, of an immovable thing, or of a universitas of movables, is molested in such possession, he may, within one year from the molestation, demand that his possession be retained, provided he shall not have usurped such possession from the defendant by violence or clandestinely nor obtained it from him precariously." While Article 535 stipulates: "535. (1) Where any person is by violence or clandestinely despoiled of the possession, of whatever kind, or of the detention of a movable or an immovable thing, he may, within two months from the spoliation, bring an action against the author thereof demanding that he be reinstated in his possession or retention, as provided in article 791 of the Code of Organization and Civil Procedure. (2) Such reinstatement shall be ordered by the court even though the defendant be the owner of the thing of which the plaintiff has been despoiled." Therefore, the actio manutentionis under Article 534 is intended to stop the violence dispossession and it is not intended to place the plaintiff back into possession. Therefore, it exists to allow the enjoyment of peaceful possession. This remedy is given when there is possession of whatever nature. This action must be filed within one year. The Court pointed out that a judicial letter was sent on 10 December 2007, but the action was filed on 15 May 2013. Furthermore, not all of the elements of actio manutentionis did exist and therefore, the action failed. Then Mr Justice Silvio Meli moved to turn down the claims and upheld the defendant's pleas. Opinion T he Planning Authority gave permission for the demolition of an existing washroom at second f loor level followed by the subsequent construction of an additional f loor with an overlying washroom after having established that the proposed designs were in line with current policies. The building in question is located in Triq Antonio Busttil, San Giljan. The permission was issued despite various objections were filed by the neighbours alleging that the building in question was not compliant with planning permits. The objectors observed that 'the basement was being used for habitable purposes' whereas the width of the curtilage was less than 3 metres (as required by law). In addition, the garage situated on the side of the property served as a separate entrance. Concluding, the objectors insisted that 'the proposed extension was designed so that the property will be divided into a number of units with each unit having its independent and separate access'. As expected, the neighbours felt aggrieved by the Commission' decision and lodged an appeal before the Environment and Planning Review Tribunal, insisting that the Commission's decision should be reversed. In their application, the objectors reiterated the following arguments: The site in question lacked a 3-metre side curtilage. To complicate matters, a separate skin was even built next to the dividing wall, as a result of which the statutory width was further reduced; The garage on the side of the building served as a separate entrance to the property. In reply, the case officer representing the Planning Authority however justified the Commission's decision, highlighting that contrary to what appellant had asserted, no illegalities could be detected on site. The case officer explained that the 'separate skin' mentioned by the objector was approved by way of a previous permit. As to the garage, it was pointed out that 'if a change of use of this space occurs, this will be in breach of the same approved plans and consequently subject to further necessary action according to law.' Accordingly, action would be taken at that stage. On his part, the permit holder rebutted appellant's allegations. Photographic evidence to show that the side curtilage had the required width of three metres was also submitted. In its assessment, the Tribunal confirmed that both the garage and the boundary wall were covered by previous planning permits. Moreover, the Tribunal held that a permit may not be revoked on mere suspicion of future 'illegal activity'. Against this background, the permit was confirmed. Dr Robert Musumeci is an advocate and a perit robert@robertmusumeci.com Robert Musumeci Malcolm Mifsud The repossession of a property must be clearly mentioned as an action of spoliation Previous planning permits may not be ignored Permit may not be revoked upon mere suspicion of future illegal activity Permission was issued by Planning Authority despite various objections filed by the neighbours alleging that the building was not compliant with planning permits Plaintiff accused his sister of taking movables from the property, which were part of the inheritance