When it is your right to cause an inconvenience

This was held on 21 October 2013 by Mr Justice Anthony Ellul in Philip and Carmen Schembri vs. Annetto and Maria Camilleri.

The plaintiffs filed a court action against the Camilleris wherein they held that they are owners of a property in Zurrieq which forms part of a complex of apartments and garages. On 27 July 2004, they sold to the defendants two garages at semi-basement level. The contract states that the garages are to be exclusively as car garages. The Camilleris use these two garages to breed rabbits, which are causing an inconvenience to other residents due to the smell and noise these rabbits cause. Apart from this the defendants installed doors on the garages that superseded the delineation and therefore these door are jutting out and that they open upon the drive in.

The Camilleris contested that the contract mentions that the garages are to be exclusively used for car garages and that they are not precluded from using the garages to keep animals. As regard to the doors, they claimed that this is not causing any inconvenience. 

With regards to the issue of the breeding of rabbits, the Court held that there was no contestation that the defendants were breeding rabbits in these garages. On the other hand the plaintiffs based their claim on their contract which states that the garages are to be used as car garages only. The copy presented as evidence was not signed, however the notary stamped 'Original Copy'. It resulted that there was a different version of that contract that the parties had signed which did not mention that the garages are to be limited to parking of cars. The Notary explained that she mistakenly sent the parties a copy of the contract which included this clause, however, the version which was signed did not mention this limitation. Mr Justice Ellul held that he had not based his consideration on the copy the parties had signed.

Schembri held in his cross examination that he did not remember that when the notary read the contract, it was mentioned that the garages could only be used as a car garage, however, he remembered that the garages could not be used for commercial reasons and to store explosives. The Court held that this did not result in the copy of the contract they presented, however, this resulted in the version that they had signed. 

Although the Court turned down the Schembris' request to block the Camilleris from breeding rabbits in the garages, the Court held that this does not prejudice their right to take any other action they may deem fit.

With regard to the issue of the doors, an architect's report confirmed the Schembris' complaint since the doors "protrude into the common drive by about 70 mm including the metal hinge". Mr Justice Ellul held that the purchase contract held that the drive in was the plaintiffs' property and it is evidence from the evidence produced that the doors were fixed from the outside. There is no evidence that the plaintiffs gave the defendants their consent for this. The defendants explained that this was done because the door they had was higher than the door. The Court immediately held that this was not justifiable and ordered their removal within 30 days at the Camilleris' expense.

Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates