Airspace over a seller's ramp passes only if stated

The Court of Appeal, composed of Chief Justice Mark Chetcuti, Mr Justice Robert G. Mangion and Madam Justice Simone Grech, ruled on 28 April 2026 that a deed describing a house as bordering the street did not transfer the airspace over the seller's garage ramp. It held that the airspace would have passed only if the deed said so clearly. The court allowed the defendants' appeal in G.M. vs V.M. and dismissed all the claims.

The facts

In 1972 the plaintiffs' father bought a house, built by the seller, that stood partly over the seller's garage. The deed described the house as bordering the street to the south. The garage is reached by a ramp from that street.

The plaintiffs, as heirs, planned to rebuild and to extend over the airspace of the ramp, with windows facing the street. The seller's widow, who holds a usufruct over the garage, and his heirs argued that the airspace over the ramp was theirs.

On 21 November 2024 the First Hall of the Civil Court accepted the plaintiffs' claims, provided the defendants kept convenient access to the garage. The defendants appealed.

What the court held

The court held that the question was what the contracting parties intended. It relied on articles 1002 and 1003 of the Civil Code (Chapter 16 of the Laws of Malta). Clear words need no interpretation, but where the literal sense conflicts with the common intention shown by the whole contract, the intention prevails.

The court found that the seller had no intention of selling the ramp and its airspace, since that would have made it hard to reach his own garage. Had he meant to sell it, he would at least have reserved a right of access over the ramp. No such right was reserved, and the deed described the house as standing over the seller's garage.

The court read the words "bordering the street" as referring to the staircase that leads to the house. It noted that later declarations of transfer on death described the garage too as bordering the street. It also accepted that the same wording is common for a flat above a front garden.

Under article 323 the owner of land owns the airspace above it, and ownership runs vertically, not in horizontal layers. The plaintiffs were the respondents on appeal. The court held: "kieku l-arja tar-rampa nbiegħet lill-appellati, dan kellu jirriżulta b’mod ċar u inekwivoku fil-kuntratt ta’ trasferiment" (had the airspace of the ramp been sold to the respondents, this had to appear clearly and unequivocally in the deed of transfer).

The court rejected the First Hall's view that the plaintiffs' balcony projecting over the ramp proved their ownership. The balcony already existed when one person owned both properties. The servitude it creates therefore arose by the arrangement the common owner made of both properties, not from ownership of the airspace.

On the windows, the court applied its own judgment of 15 July 2025. A person cannot build balconies or open apertures over another's property, even where that property borders the street. Article 425 bars openings in a dividing wall without the neighbour's consent, and article 426 allows openings only in an external wall facing the public street.

Why it matters

A buyer of a house above another's garage or front space does not take the airspace over that space merely because the deed says the house borders the street. A notary who intends to transfer such airspace must say so expressly, and a seller who keeps it should reserve any access right in terms.

A projection that existed when both properties had one owner points to a servitude, not to ownership of the airspace.

Where it sits

The case applies two rules a student meets early. Articles 1002 to 1011 of the Civil Code guide the interpretation of contracts, and the courts treat them as directive rather than mandatory. Article 323 states that the owner of the soil owns what lies above and below it, which Maltese courts read as vertical ownership.

On interpretation the court cited Torres Co. Ltd vs L-Għajn Construction Company Limited (Court of Appeal, 28 April 2017), the Court of Appeal (8 April 2025) and General Cleaners Co. Ltd. vs Accountant General (First Hall, 29 November 2001).

On airspace and openings over a neighbour's property it cited the Court of Appeal (24 March 1975, 5 October 1998, 25 September 2006 and 30 May 2014) and the First Hall (15 December 2022). On balconies over another's property it applied the Court of Appeal (15 July 2025).

Source

Court of Appeal (Superior Jurisdiction), 1082/2022/1, 28 April 2026.