Court blocks construction works pending title claim

Madame Justice Lorraine Schembri Orland upheld her decree on 13 February 2014 in the names of John Mary sive Jimmy Zerafa, Anthony Zerafa and Rose Pisani -v- Paul and Jacqueline Polidano.

In their application, the Zerafa brothers asked the defendants Polidano to be prohibited form demolishing and building, more precisely the removal of a skylight and the roof, on their property in Hal Qormi. 

However, on their part, the defendants claimed that the applicants had illegally taken the possession of a property that was not theirs and held that the roof was their property. 

They asked the Zerafa brothers to indicate their title on the property. 

From the evidence produced the Zerafa are co-owners of 21, Mifsud Ellul Street, Qormi and Rose and George Pisani live in this house. 

On 26 December 2013, the Polidanos started demolition works on the roof above this house. The roof included a room that was being used as a bedroom. The works consisted in the removal of a dividing wall between this house and neighbouring house number 23, as well as the removal of the skylight and the stairs that the plaintiffs use. 

Exhibited photos of the bedroom showed debris inside.

The Court pointed out that the plaintiffs were not contesting the nature of the works that were being carried out. Moreover, there was no contestation on the possession of the rooms involved but the legal title under which they are being held.

Madame Justice Schembri Orland held that the application for the warrant of prohibitory injunction was based on their possession and not on the title they held. She also explained that the applicants were asking the court to stop the defendants from not allowing them to enjoy their possession of the rooms.

During court proceedings, Jacqueline Polidano testified that house number 23, which was built in 200, was originally houses 10, 11, 12 Mifsud Ellul Street, Qormi, which were occupied by her grandmother.

They had demolished these houses, except a small part. She did not have access to the rooms under the roof, which rooms are subject to this application. An architect was appointed to testify.

He exhibited a certificate he drew up which stated: "There is an L-shaped area located to the rear of the property and which forms part of the property but which had not been developed at the time when the residence was constructed... This area had been omitted from the development being left inaccessible at the time of the construction of the property... Door opening in the party wall leading into the space at ground and first floor levels were made by the neighbour at some time thereafter."

The Court examined the legal aspects of the application, where the applicant merely had to prove that they had a prima facie right and that if the warrant was not issued they would suffer a prejudice to that right. 

If not established, the Court was bound to turn down the application as mentioned in Article 873(2) of the Code of Organisation and Civil Procedure. This action is a precautionary action and the fact that the court upholds this application does not imply that the applicants' right have been proved.

The First Hall of the Civil Courts held that the basis of the application was that of possession and the enjoyment of that possession. The defendants claimed that this right was usurped since the applicants had opened a wall from their house to the unconverted part of house 23, which was not demolished in 2000 and that the Polidanos themselves blocked access to this part of the house. 

In its decree, the court held that the applicants did not prove that they had a prima facie right. Moreover, the court did not enter into the issue pertaining to the ownership of the property, as this would have to be dealt with in a separate lawsuit. 

Furthermore, Madame Justice Schembri Orland that it was clear that if the demolition works continued the applicants would suffer a prejudice and therefore the court was to allow a status quo until another court would decide on the title. 

Therefore, the Court allowed the warrant to be issued.

Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates