Issue link: https://maltatoday.uberflip.com/i/926403
46 maltatoday SUNDAY 14 JANUARY 2018 T he First Hall of the Civil Courts pointed out that the prescription period for compensation due to one partner for works carried out in the other partner's property, commences when the former vacates the property and the relationship no longer exists. This was decided on 8 January 2018 in a judgement Emmanuel Balzan -v- Francelle Agius, delivered by Mr Justice Lawrence Mintoff. The plaintiff, Emmanuel Balzan, explained in his application that he had a relationship with the defendant, Francelle Agius, from 2007 to 2013 and they resided in her house in Gudja. During that time he carried out a number of works and purchased a number furniture, tiles, and other things. In fact, when they started their relationship the property was in shell form. Part of the investment derived from the sale of his property in Kirkop. He has asked the court to order a refund for the investment made. Francelle Agius disagreed and filed a statement of defence, amongst which was that the action was time barred. She also held that she obtained a loan in order to finance the finishing of the house. Mr Justice Mintoff analysed the evidence brought before the court. The plaintiff testified that at the beginning of his relationship with Agius, he lived in his property, but when she became pregnant, he moved in her property in Gudja. The property was semi-finished, and had no windows and doors and no tiles. Since they were expecting a baby he worked on the essentials such as the kitchen and the bedroom. He painted the property. He gave a list of works and expenses he paid throughout the years. The receipts were confirmed by those who issued them. Under cross examination, Balzan confirmed that the property he had was of his previous marriage and with his half of the sale of the property, he bought another property in M'Scala and he had carried out works there also and then rented it out. When he left the Gudja home, he took a number of items, however, they are not included in the claim he made. Agius also testified in the case and she held that she was separated in 2006. In 2005 she borrowed money for works in her Gudja property. The parties lived for a time at her mother's residence, but then moved in her Gudja property. Her mother contributed towards the purchase of a new kitchen, and the rest was paid by Balzan. With regard to the legal points, the Court held that the action was based on Article 1028A and B of the Civil Code, which read: "1028A. (1) Whosoever, without a just cause, enriches himself to the detriment of others shall, to the limits of such enrichment, reimburse and compensate any patrimonial loss which such other person may have suffered. (2) If the enrichment constituted a determinate object, the recipient is bound to return the object in kind, if such object is still in existence at the time of the claim. 1028B. The actio de in rem verso may not be exercised where the person who suffers the loss may take another action to make up for such loss." The Court first examined whether the action was time barred or not. In Mary Balzan -v- David Jaccarini decided on 17 January 2014. It held that in de in rem verso action, there is no specific article of law that established the prescription period, and therefore, the five years period applies. It also stated that this period commences when the action can be instituted. In this case, the defendant argued that the unjustified enrichment took place when the works took place. Mr Justice Mintoff, held that in this case, the works were carried out between 2006 and 2010, and therefore, if one had to argue that the prescription period is five years, then the action is time barred. The Court pointed out that in the premises of the application, the plaintiff claimed that he expected payment from the defendant, when he vacated her property. The unjustified enrichment took place when he left the place, because he was no longer benefitting from his own investment. This is echoed in another judgement Anthony Pace et -v- Maria Pace, decided on 25 April 2017. This action, which was introduced in 2007, but was part of our jurisprudence for well before, has three elements. The defendant must not have paid for the advantage, there must be a connection between the work carried out by the plaintiff and the advantage of the defendant, the defendant, who received the advantage had no title. The defendant also argued that she had taken care of the plaintiff by washing his clothes and cooking for him without payment, however, she did not give the court a value to this nor file a counter claim. There is a set off, when the debts are known, but compensation cannot be a considered as a credit if the other party does not admit to owing such amounts. If Agius has a claim against Balzan, then a separate action may be lodged. As regard to the amount of compensation, for the expenses incurred, the total amounts to €8644.32. The Court, however, held that the plaintiff had made use of the expense for seven years, which amounts to half the life span of the investment made. Therefore, he awarded half, €4,372. With regard to the moveables that still are in the defendant's possession, the plaintiff did not ask for their return, but asked only for compensation and as such. The court is limited to decide only on what the plaintiff claimed and therefore, the court cannot order their return. Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates Opinion A development planning application contemplating the construction of three additional levels over an existing two storey terraced house was granted permission after the Planning Commission held that the drawings were in line with Local Plan policies. The application was given the green light despite the neighbours having voiced concern over the fact that the current predominant height is two floors. The building is located within a designated residential area in Swieqi. Following permit approval, the objectors filed an appeal before the Environment and Planning Review Tribunal, insisting that the permit should be revoked. In their appeal submissions, the objectors argued that the proposed development was not considered as being 'adequate with regards to both of the apartment block's immediate context and streetscape', adding that 'the proposed additional floors would create large blank party walls and stand out firmly in an unattractive manner, such that the appearance of the proposed block would be out of scale and significantly taller than the buildings in the vicinity'. For this reason, the objectors argued that the general streetscape was 'definitely going to suffer'. In addition, traffic problems were envisaged since the proposal failed to include adequate on site parking spaces. Consequently, the objectors argued, the proposal was in breach of current standards which require that 'on site parking should be enforced in residential areas'. In their concluding remarks, the objectors stressed that the value of their property would be reduced since they could no longer enjoy the views. In reply, the case officer representing the Planning Authority stated that the proposal was 'assessed against the applicable North Harbours Local Plan policies for Swieqi and related policies in the Development Control Design Policy Guidance and Standards 2015'. The officer explained that the approved heights conformed with the permitted height limitations. Whilst acknowledging that the additional floors would result in large blank walls on both sides of the property, it was held that 'this may be temporary since the adjacent site can be similarly developed in the future'. On the other hand, applicants may, as a rule, choose to pay a financial compensation to 'make up' for the lack of on site parking. In his conclusive remarks, it was underlined that view obstructions as a result of new developments are not deemed as a material consideration. In its assessment, the Tribunal immediately observed that the proposed heights were in line with the policy limitations. Moreover, the parties were reminded that 'any future commitments provided for by the Local Plans, even if the commitments are as yet unbuilt' are tantamount to a 'commitment' in terms of planning law. Using this logic, appellant was wrong to argue that the area was not yet committed and should thus remain unbuilt. Against this background, the Tribunal rejected the appeal. Dr Robert Musumeci is an advocate and a perit with an interest in development planning law robert@robertmusumeci.com Robert Musumeci Malcolm Mifsud Prescription period for compensation of works between parts, commences upon split 2006 Local Plan prevails "View obstructions as a result of new developments are not deemed as a material consideration"