by Dr Carlos Bugeja – Partner
It is quite common in this day and age for holders of an airspace above an old apartment block to seek to build further floors and in turn renovate the building. The developer may wish to install a lift in the common parts, but many a time, condomini are reluctant to give their approval, and even less ready to share the expense.
It is often wrongly assumed that the disapproval of the unwilling condominus may be successfully pleaded at Planning Authority stage. This is incorrect. We have plenty of decisions by the Environment and Planning Review Tribunal and the Court of Appeal that reiterate that civil issues ought to be reserved for the courts to decide upon, for each and every planning permit is approved subject to third party rights. The obligations of the Planning Authority and its apposite bodies are to see whether the application filed meets that which is provided in Maltese laws, regulations and policies. The Planning Authority is neither bound nor is competent to determine civil matters which inherently are to be decided by the Courts of Justice.
On the other hand, it is also wrongly assumed that unless all members of the block agree to the installation of the lift, it cannot be done. Our law is aware of the necessity to install a lift, particularly in bigger blocks of apartments. There is hardly any economic benefit to having high risers without the service of a lift. Therefore, the law does provide for a remedy for the prospective developer, against some conditions.
Article 8 of Chapter 398 of the Laws of Malta (Condominium Act) states that the condomini may by the vote of the majority provide for the making of alterations to or innovations in the common parts which bring about an improvement or the more comfortable use or the better enjoyment of the common parts. This includes the installation of a lift.
But the law does more than rely on the vote of the majority. It further states in article 9 (5) of the Condominium Act that a condominus may at his own expense install or erect any necessary facility which mitigates or eliminates problems of mobility provided that these do not cause any serious prejudice, after such erection or installation, to the other condomini.
The installation of a lift can be certainly said to be a facility ‘which mitigates or eliminated problems of mobility’. It is then up to the court to determine whether the installation of a lift in the particular circumstances of the case causes serious prejudice.
This faculty deviates from the general principle of law that no one can interfere in another’s property. It is a measure against stagnancy and in favour of accessibility to all.
Alpa & Mariconda, two renounced Civil Law commentators, state that:
“l’installazione di un ascensore e’ stata sempre considerata un’innovazione, se diretta al miglioramento, all’uso piu’ comodo o al maggior godimento delle cose comuni; e cio’ puro se l’intervento comporti un taglio parziale delle scale comuni o la sottrazione di una parte del cortile comune o una modifica della destinazione della tromba delle scale dei pianerottoli od anditi, posto che, pur eliminandosi la possibilita’ di un certo tipo di godimento, se ne offrirebbe uno differente di contenuto piu’ ampio e completo”.
What is stated here is remarkable. Basically, the installation of a lift is an encouraged innovation even if it necessitates the narrowing of the stairs. This reasoning was repeated in the Maltese judgment of Nathalie Dalli et vs Mario Azzopardi et (405/2008), per Onor. Imħallef J. R. Micallef.
Therefore, the installation of a lift, where necessary, is not as improbable as it may first sound. The court will always protect the other condimini against excessive serious prejudice, but innovation and greater mobility is encouraged and protected by our law.
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 Carlos Bugeja on carlos@abalegal.eu.