Dissenting co-owner's price is valued at the konvenju date
The Court of Appeal refused a retrial sought by a co-owner forced to sell her share under article 495A, holding that the fair price is measured at the date of the konvenju. It matters to co-owners who oppose a sale of property held in common.
On 22 January 2026, the Court of Appeal refused a co-owner's application for a retrial of an appeal about the forced sale of her share under article 495A of the Civil Code. The court held that none of the six grounds she raised under article 811 of the Code of Organization and Civil Procedure was made out. It also held that the fairness of the price in such a sale is measured at the date of the promise of sale, not the date of judgment.
The facts
R.J. vs P.G. concerns a property in Gozo held by five siblings. Four owned four-fifths between them, and the defendant owned the remaining fifth. In April 2021, the four signed a promise of sale, or konvenju, to sell the whole property to a couple for €850,000.
The defendant would not join the sale, so the buyers and the four sellers applied to the court under article 495A. The defendant argued that the price would cause her serious prejudice.
The court of first instance found, on the valuations of its architects, that €850,000 was too low. Using article 495A(7), it authorised the sale at €1,095,600. The Court of Appeal dismissed her appeal on 29 October 2024, except on the costs of the first instance.
She then applied for that judgment to be set aside and the appeal heard again. Mr Justice Giannino Caruana Demajo, presiding, Mr Justice Anthony Ellul and Mr Justice Mark Simiana decided the application.
What the court held
The defendant first argued fraud under article 811(a). She submitted that the buyers brought the case in the sellers' names without authority, and several siblings testified that they had not sued their sister. The court held that a judgment is obtained by fraud only where a party shows false facts or hides true ones and so leads the court to its conclusion.
Here, both courts knew of the allegation, heard the siblings and decided the point. In the court's words, “ma kien hemm xejn moħbi jew mhux magħruf għall-qrati” (nothing was hidden from or unknown to the courts).
Her second ground was a wrong application of the law under article 811(e). That ground does not apply where the point is one of interpretation on which the court expressly decided. Both courts had read article 495A(7) as giving the court power, when it allows a sale, to fix the price, even if the application asked only for approval of the proposed sale.
The court held that the defendant was contesting that interpretation, not the application of one law in place of another. For the same reason, it rejected her claim under article 811(f) and (g) that the judgment went beyond what was asked. The court had used a power the law gives it.
Her fourth ground was that the judgment contained contradictory dispositions under article 811(i). The court accepted that the Court of Appeal had not considered her grievance on the form of the original application. A failure to consider a grievance, however, is not among the grounds in article 811 and does not make dispositions contradictory.
Her last ground was an error appearing from the records under article 811(l). The earlier judgment said she had brought no evidence of the property's current value, which she put at over €1.3 million. The court held that an error leads to a retrial only if it was decisive.
It found that the comparison under article 495A is always with the value at the time of the konvenju. The parties to a promise of sale can only agree a fair price on the value when they agree. Her argument for the current value was therefore “non sequitur”, and any error about evidence of today's value could not have changed the result.
The court refused the application and ordered the defendant to pay the costs.
Why it matters
A co-owner who opposes a sale under article 495A should contest the value as at the date of the konvenju. Evidence that the property has since risen in value will not help. A retrial is also not a second appeal: disagreeing with how the court read a law it expressly interpreted will fail.
Where it sits
Article 495A of the Civil Code (Chapter 16 of the Laws of Malta) lets co-owners who want to sell ask the court to authorise a sale of the whole property against a co-owner who refuses. As the court explained, subarticles (1) to (5) govern the application and the reply, and subarticles (6) to (9) govern the decision. These include the power in subarticle (7) to fix the price and the sale by licitation in subarticle (9).
The first-instance court held that a valuation above the agreed price does not by itself amount to serious prejudice, which is left to the court's discretion. Retrial under article 811 of the Code of Organization and Civil Procedure (Chapter 12 of the Laws of Malta) is an exceptional remedy limited to the grounds that article lists.
The court named no earlier judgments and decided on the articles alone.
Source
Court of Appeal (Superior Jurisdiction), 54/2021/2, 22 January 2026.