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Preventive Action Against Future Damage to One’s Property: Part I

by Dr Mary Rose Micallef – Junior Associate

Civil actions are predominantly triggered as a result of damage or harm suffered by the victim – civil actions become legally functional once the evidence of damages become evident. Conversely, actions to protect one’s self or property from future harm are no common occurrence within our Civil Law.

The notion of having to liquidate damages that have not yet occurred is projected from fear. Hence the general actions of tort require the element of the event of fault – no event of fault – no damages.

However, Maltese law does embrace a constitutional remedy that addresses a potential ‘likely harm’ – however, this is merely related to breaches of human rights and fundamental freedoms.

Barring this constitutional remedy, the Civil Law does provide a few limited actions that may be triggered before the damage occurs.

These are found amongst the possessory actions – this discussion shall be dealing with the legally known action of the actio operis novi nuntiatio – the action to restrain the continuation of new work where damage is feared.

This action is a possible alternative to the notorious measure of the warrant of a prohibitory injunction.

It is provided in article 538 (1) of the Civil Code which holds:

“Where a person has reason to apprehend that in consequence of a new work undertaken by any other person either in such other person’s own tenement or in the tenement of others, damage may be caused to an immovable thing possessed by him, he may bring an action demanding that such other person be restrained from continuing such new work, provided this shall not have as yet been completed and one year shall not have elapsed from the commencement thereof.”

The origins of this action emerges from Roman Law – most of its ancient features are mirrored within our Civil Code. The term operis novi nuntiatio, translates as ‘denunciation of new ‘work’.

The scope of this action is to prevent the occurrence of damage – therefore such action must precede the event of damage. Instituting such action after the event of damage would, of course, be fruitless.

This action is equally available to owners and possessors – it is a possessory action.

The action is available after new works commence and within a year from the commencement date. It is imperative that works are commenced –works cannot be merely planned or approved by a planning permit.

It must be instituted within a year from date of commencement and must be made by the person who is undertaking such works.
The crucial requirement of this action is the fear of future harm/ damage to one’s property. This element must not comprise mere hypothetical thoughts (no ‘ifs and buts’) – it must be concrete fear of future damages.

This apprehension of damage (“biża raġionevoli”), as a requisite has been stressed about for time and again by our courts.

To this effect, the judgement ‘Schembri vs Camilleri’, delivered by the Court of Appeal (Sup) on the 25th March 2007 dealt extensively with the term ‘apprehension of damage’. It stated that:-

“Mill-kwalifika magħmula fil-liġi nfisha, għalhekk, mhux kull biżgħa li jista’ jkollha persuna tkun biżżejjed biex issejjes azzjoni bħal din. Tali biżgħa trid tkun wisq iżjed minn sempliċi teħbir ilqalb jew suspett:

iżda ma jidhirx li, min-naħa l-oħra, trid tkun tikkostitwixxi għarfien assolut ta’ ħsara li sejra tiġri. L-element tal-biżgħa dejjem u tabilfors jimplika fih innifsu xi għamla ta’ inċertezza, u għalhekk wieħed jagħmel ħażin jitkellem f’termini ta’ assolutezza, u dan kemm dwar min hu suġġett għall-biżgħa u kif ukoll dwar min jagħti lok għaliha.”

This same judgement confirmed that the action does not require proof that future events would certainly occur – it has been acknowledged by the court that no proof can ever ascertain the future – one may only anticipate.

The cited case ascertained that any development i.e. whether legal or illegal, could be subject to this action – the legality of the works or otherwise is immaterial to this action.

The procedure entails that the court is to take cognizance of the facts summarily and it shall either restrain or allow the works to continue, provisionally.

If the court orders that such works are stalled, the person who alleges the future damage is to provide security to the person who undertook the new works. If the allegation of future damage is declared groundless by the final judgement, such security becomes payable to the person who undertook the new works.

Conversely, should the works continue, the person who undertook such works shall issue security in favour of the person who alleges future damages. Should the final judgement favour the person who alleged the damages, the said security would be payable to the latter, following the final judgement.

Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Mary Rose Micallef on maryrose@abalegal.eu.