by Dr Mary Rose Micallef – Junior Associate
The following is the second article in a series of articles delving into the concept of preventive action in Civil Law. The previous article may be viewed here.
In Part I of these series we discussed the action known as the operis novi nuntiatio – an action available to an owner/possessor of a tenement who fears harm to his property due to the presence of new works occurring in adjacent property. The possessor could simply be a person who is living in the tenement under a title of lease.
A sister concept of the latter action is known as the actio damno temuto – the common concept being fear of harm/an apprehension of harm occurring to one’s property.
Like its sister action, this kind of action has retained most of its original Roman Law features, except that under Roman Law, claimant would have been able to evict the owner of the ruinous property if the latter failed to provide sufficient security to the eventual damages.
These kind of actions are considered to be abnormal in our Civil sphere, due to their possibility of being able to be instituted before the damage even occurs.
Let us suppose that one lives in a tenement, besides an adjacent property which is left abandoned or in a dilapidated state by its owners. Naturally, as a result of the adjacent tenement’s abandonment one would start to fear damage to his own property.
This topical scenario usually leads to an ordinary tortious litigation procedure. Tort procedures, however, would always require the event of damage prior to the institution of the case. If damage is not suffered, instituting such procedure would be fruitless.
There must essentially be the event of damage prior to the institution of the case.
The given scenario, however, contemplates fear of harm – a scenario where damage has not yet occurred, but it is merely feared by the owner or the possessor of the tenement who is about to suffer damages, as a consequence thereof.
As explained in Part I, in so far as damages are concerned, our Civil Law and jurisprudence adopts the cause and affect (causal link) doctrine. This necessarily means that in order to be awarded damages, one must sufficiently proof to the court that such damages did indeed occur.
The action that is contemplated today, allows an owner/tenement to sue his neighbour before the event of damage take place.
The action is provided in article 539 of the Civil Code:-
“Where any person has reasonable cause to apprehend any serious and impending damage to a tenement or other thing possessed by him, from any building, tree or other thing, he may bring an action demanding, according to circumstances, either that the necessary steps be taken to obviate the danger, or that the neighbour be ordered to give security for any damage the plaintiff may suffer therefrom.”
Like all other Civil actions, such action comes with its all elements that
must be sufficiently proven.
The first would be the proof that plaintiff, does indeed has a just reason to fear that harm would be occurring to the property that he possesses.
Secondly, the element of fear cannot be based on hypothetical thoughts – damage must be foreseeable and not merely potential.
The scope of the action would be to demand either that:
1) either the neighbour undertakes the necessary works to remove the dangers that would be causing harm to the neighbour’s property;
2) or that the neighbour of the dangerous property provides an adequate security for any damage which the plaintiff may suffer.
This type of action was instituted in the case of Gellel vs Borda (Court of Appeal, decided on 25/05/2007).
The facts concerned a plaintiff who possessed a garage and claimed that his property was at peril because the owner of the overlying tenement had neglected his tenement. The court found that indeed the above property was in fact left abandoned and it acknowledged that if remedial works were not carried out, the underlying property would be suffering structural damages.
The court ordered defendant to undertake in his property, the necessary remedial works so that plaintiff’ s property would be safeguarded from the feared damages.