From the series Living, Land & Law: Fortnight Insights – Article 7
Do property owners have the right to construct buildings to any height, disregarding the impact on neighbouring properties, including access to shared facilities like water tanks?
One consequence of the right of ownership of immovable property is the presumption of vertical ownership, set out in Article 323 of the Civil Code, and which stipulates that whoever has the ownership of the land, also has that of the space above it and of everything on or over its surface. Nonetheless, this is a juris tantum presumption, meaning that it is rebuttable, and can be limited through the public deed. Ancillary to this presumption is Article 324 of the Civil Code which states that any improvements which take place either on or over or under the land shall be deemed to have been made by the owner and at his own expense.
From these two articles it can be concluded that the owner, unless limited by law, may construct his building to any height which he pleases.
Nonetheless, in terms of the provisions of the Civil Code, there is also a prohibition which may be imposed on a servient tenement from developing the servient tenement beyond a stipulated height. This easement emerges from Roman Law, and it is referred to as the Altius Non Tollendi.
The Altius Non Tollendi is a non-apparent easement which does not allow the owner of the servient tenement from doing something, involving the raising of higher structures. The determination as to whether there is a servitude of Altius Non Tollendi is establishing whether a tenement holds a relationship of dominance over the other. Therefore, this servitude, through which neighbouring buildings are not allowed to exceed a certain height, so as not to impair the views of another tenement, must arise from a deed.
Nonetheless, in this regard, one can also refer to the easements regulating the dividing wall, also known as the party-wall or the boundary wall, as stipulated in the Civil Code. The dividing wall is the wall which separates two adjacent tenements. In terms of Article 414 of the Civil Code, which deals with the raising of the common wall, every co-owner may raise the height of a common wall, but is solely liable for the expenses incurred for:
– Raising the height of the wall;
– Keeping in good repair the part raised above the height of the common wall.
Carrying out such works as may be necessary for the support of the additional weight resulting from the raising of the wall, so that the stability of the wall will not be impaired.
Moreover, in terms of Article 415 of the Civil Code, if the common wall is not in a condition to stand additional height, the landowner who wishes to raise its height must have it entirely reconstructed, and this is at his own expense. Similarly, in the consequent article, it is also made clear that the party raising the common wall is also liable and bound to make good to his neighbour any damage which the latter may have suffered, in consequence of raising the party wall.
Our team of property law experts at Sciberras Advocates in Malta is here to assist with any property issues you may encounter. Feel free to reach out to us at [email protected] for professional support.
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