Window restrictions under Maltese Property Law
Maltese Law places significant importance on an individual's right to freely develop and manage their property as they wish. Article 320 of Chapter 16 of the Laws of Malta1 clearly states that "Ownership is the right to enjoy and dispose of things in the most absolute manner..." However, this right is not without limitations, as it is subject to specific legal restrictions. Notably, Maltese law imposes a prohibition concerning the installation of "windows".
Article 4252 stipulates as follows "it shall not be lawful for one neighbour to create a window or any other opening in the party wall without the consent of the other". This restriction is further emphasised through article 443(1)3 which provides that "It shall not be lawful for the owner of any building to install windows within 76 cm of the party wall".
Maltese law establishes a significant presumption that the owner of a piece of land also holds ownership of the space above it, as well as everything on, over or beneath its surface.4 This presumption has led to disputes between different property owners in a block of apartments, particularly between the owner of the top floor airspace and the owner of the ground floor apartment or maisonette. Typically, the owner of the ground floor unit also owns and has access to the internal and rear yards. Legally, this means that the said owner are presumed to own the airspace above these yards as well, unless otherwise specified in the purchase agreement.
The issue arises from the fact that most purchase contracts made before the recent property boom did not include any provisions specifying the division of the airspace above the yards according to the building's levels. At the time, both vendors and purchasers were largely unaware of the potential value of airspaces. As a result of this oversight, many contracts of sale pertaining to immoveable property do not address this matter, and the legal presumption in favour of ground-floor owners continues to dominate in many apartment blocks across Malta.
This situation has given rise to an unusual form of 'party wall'. A party wall is a wall which serves to separate two buildings or a building from a tenement of a different nature and under Maltese law must have a thickness of not less than 38cm.5 While the common understanding of a party wall is that it separates two physical properties, it can also refer to the boundary between a built property and an unbuilt airspace, extending infinitely in its height.6 Therefore, when the law refers to limitations concerning party walls, it can also apply to walls that separate a built property from an airspace.
Primarily, an 'opening' in the party-wall is a direct breach of article 425 of the Civil Code. However, article 4437 further provides that for the owner of any building to open windows, this should be done at a distance of less than 79 cm from the party wall. In the case of balconies or other similar projections, the said distance shall be measured from the external line of that side of the balcony or other projection, which is nearer to the party-wall, to the internal line of such wall.8
If the aforementioned conditions are not adhered to, the owner of the ground floor may have a claim against the owners of the apartments above him. Similarly, no new windows may be opened in any subsequent level.
There are certain exceptions to the above, some of which are quite significant. The most notable exception is the presence of a servitude that has been legally established. In simple terms, servitudes refer to the right of one property over the another, and in some cases, a purchase contract may grant permission to open windows over another person's property. Additionally, servitudes can be validly established through prescription, meaning possession for a minimum period of 30 years.9
The law includes another important exception, which could be considered as an easement established by law, and this is outlined in Article 426 of the Civil Code. This specific article provides that "When the storeys of a house belong to different owners, each owner may in their own storey, create a balcony, window, door or other opening in the external wall, provided that the stability of the wall is not compromised."
This provision appears to apply to the wall facing the street, although there remains some legal uncertainty regarding whether this exception applies when the proposed opening faces the external parapet rather than directly onto the street. There have been different court rulings on this matter.
The law does not specify "a price" for each window constructed. It sets out rights and obligations thereby leaving it to the parties involved to decide whether to waive these rights and under what conditions, provided that such waiver is legally valid.
On the 26th of January 2018, in the case of 'Saviour & Ersilia Borg vs Paul Camilleri et al.' the First Hall, Civil Court reviewed and scrutinised article 443 of the Civil Code. The parties in the case in question owned adjacent properties. In 2005, the defendant carried out additional work on his property, constructing a projecting structure along its facade. The plaintiffs filed a lawsuit under article 443(2) of the Civil Code and argued that the new structure qualified as a projection.
They contended that measurements should be taken from the "external line of the balcony or projection nearest to the party wall to the internal line of the wall". The plaintiffs sought a court order requiring the defendant to modify the structure to comply with the law. The court highlighted that the party bringing the claim does not need to prove that they will be harmed or unable to fully use their property if the defendant fails to comply with the 76cm requirement set out by law.
The court further stated that the relevant article seems to establish a legal servitude for public order reasons, aiming to prevent one's party property from encroaching on an adjacent property. The main issue which the court had to decide was whether the structure in question fell under article 443(1) or was classified as an extension/projection under article 443(2) and this classification would determine whether the measurements should be taken from the party wall or the external line of the "balcony or projection".
After consulting with appointed experts, the court determined that the structure of the defendant's property was a "projection" under article 443(2) of the Civil Code and found that the defendant had not complied with the required legal distance. The court ordered the defendant to make the necessary adjustments within 2 months to bring the structure and the distance between the properties into compliance with the law.
Footnotes
1 The Civil Code.
2 Chapter 16, Laws of Malta.
3 Ibid.
4 Article 232, Chapter 16 Laws of Malta.
5 Article 407, Chapter 16, Laws of Malta.
6 usque ad coelum; as far as heavens. This refers to the legal rule that the owner of a land owns the airspace above it indefinitely upward.
7 Chapter 16, Laws of Malta.
8 Article 443(2), Chapter 16, Laws of Malta.
9 Article 462(1), Chapter 16, Laws of Malta.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
