New floors cannot add windows over the yard below

The Court of Appeal held on 26 February 2026 that owners who build new floors above a ground-floor maisonette may not open windows or balconies over the yards of the owners below. It also held that the new flats may not connect to drainage pipes shared by the original units. In R.W. and R.M.C. vs C.M. and C.A., Chief Justice Mark Chetcuti, Mr Justice Christian Falzon Scerri and Madam Justice Josette Demicoli dismissed the defendants' appeal.

The facts

The plaintiffs own a ground-floor maisonette with an internal yard and a back yard. Their title gives them the airspace up to 12 courses of stone above street level and states that the property is free from real rights. A first-floor unit owned by third parties stands above it.

In 2019 those owners donated the airspace above their unit to C.M., and the defendants built three new floors. The plaintiffs complained of new windows over their internal yard, new balconies over their back yard and new pipes connected to the existing drains.

They brought an actio negatoria, the action asking a court to declare property free from a servitude that another person claims. On 26 September 2024 the First Hall of the Civil Court upheld the claims and ordered the defendants to remove the windows, balconies and pipe connections within six months. The defendants appealed on seven grounds.

What the court held

The defendants argued that no party wall divided the two properties, because a third party's unit lay in between. Without a party wall, they said, articles 425 and 443 of the Civil Code did not apply.

The court disagreed. A wall that separates the property of one owner from that of another, even at different levels, is a party wall. That was true of the rear wall carrying the balconies and of the walls around the shaft.

The lines dividing layers of airspace, the court said, are artificial and invisible, and the layers form one with the yard below. It held that "kwalsiasi twieqi jew gallarijiet li jinfetħu fis-saffi differenti tal-arja neċessarjament jaffettwaw lis-sid tal-arja tal-bitħa jew ġnien fil-pjan terran" (any windows or balconies opened in the different layers of airspace necessarily affect the owner of the yard or garden on the ground floor).

Article 425 bars a neighbour from making windows or other openings in a party wall without the other's consent. Article 443 requires a distance of 76 centimetres from it, and the court treated a balcony like a window for this purpose.

A window is a continuous and apparent servitude, which under article 457 arises only by title, prescription or the act of one owner of both properties. None was proved, and a building permit is issued saving third-party rights. The defendants had therefore created servitudes of overlooking in breach of article 425.

The court rejected the complaint that a milder remedy should have been ordered, since the defendants never proposed one and article 425 is clear. It did correct a numbering slip: the orders cover the second, third and fourth floors in English, which are the third, fourth and fifth in Maltese.

On the drains, article 104 of the Code of Police Laws (Chapter 10 of the Laws of Malta) obliges the owner of the lower part of a house to let pipes pass from above to the public sewer. The court held that this legal servitude gives no right to connect into the common pipes serving the original units.

Between two conflicting architects, the court preferred the view that the old system was not designed for so many units. It dismissed the appeal and ordered the defendants to pay the costs of both instances.

Why it matters

Buying airspace over someone else's yard does not buy a right to look into it. Windows and balconies facing that yard need a servitude created by title, and a planning permit is no substitute. New units must run their own pipes to the public sewer rather than load the pipes shared below.

Where it sits

Maltese law follows vertical ownership: the owner of the land owns the airspace above it, so horizontal layers held by different owners fit the Civil Code poorly. Article 407 describes the party wall, and article 409 presumes a dividing wall common up to its top unless there is proof otherwise.

The court relied on its judgment of 30 November 2007, which drew on Court of Appeal decisions of 1 August 1966, 11 June 1971 and 24 March 1975 and on the First Hall (20 July 1992). It applied the Court of Appeal (5 October 1998), where airspace above 13 courses had been sold and the upper owner still had no right to look into the property below.

On balconies it cited the Court of Appeal (22 June 2022) and the First Hall (24 January 1958), and on windows into shafts the Court of Appeal (12 February 2018). On article 457 it cited the Court of Appeal of 8 April 2025, 5 December 2024 and 15 July 2025, and on article 104 the Court of Appeal (14 October 2025).

Source

Court of Appeal (Superior Jurisdiction), 1013/2021/1, 26 February 2026.