Sunken garage and pool breach a 15-foot curtilage clause

The Court of Appeal held on 10 March 2026 that a semi-basement garage and a swimming pool built in a protected side curtilage breach a 1966 building clause, even though the court's experts did not count them as coverage. The court also held that the holder of the property could not rely on prescription to escape the clause. In Edrichton Estates Limited (C23156) vs A&A Properties Limited (C7576), Mr Justice Robert G. Mangion, acting president, Madam Justice Audrey Demicoli and Madam Justice Josette Demicoli confirmed the demolition orders.

The facts

In 1966 a building plot was granted by perpetual sub-emphyteusis, a grant in exchange for a yearly ground rent (ċens). Clause 4 barred premises higher than 15 feet from road level and allowed only 33.33% coverage. It also required a side curtilage of at least 15 feet all round the building and capped the boundary wall at four feet above garden level.

A villa was built and changed hands several times. The defendant company bought it in 1996 by a deed that did not repeat the 1966 conditions. The plaintiff company holds the sub-direct dominium, the grantor's side of the relationship, as the Court of Appeal settled on 26 May 2021.

Court-appointed architects found coverage of about 40% even without the garage and pool, a side curtilage under 15 feet and part of the boundary wall above four feet. The additional experts said that the garage, which lies under the curtilage, and the sunken pool were not coverage and did not reduce the curtilage.

On 29 September 2021 the First Hall of the Civil Court rejected every plea of prescription. It ordered the defendant to demolish the parts marked on the experts' plan, remove the garage and pool and lower the wall within six months. The appeal was heard afresh after the Court of Appeal ordered a retrial on 23 June 2025.

What the court held

The defendant argued that it could not be bound by conditions it never knew. The court held that a proper search of the root of title would have shown the 1966 deed. A note of enrolment need not list the conditions, because a buyer must examine the public deed itself.

The defendant also paid ground rent to the plaintiff, so it knew who held the direct dominium, and article 1511 of the Civil Code applied. The link between the two is real as well as personal.

The 10-year prescription under article 2140 therefore failed, since it needs good faith throughout, and the defendant could not rely on its own failure to search. Under article 2118, a person who holds a thing on behalf of another cannot prescribe in his own favour, and an emphyteuta is such a person.

The court rejected the 30-year plea under article 2143 and the claim to freedom from the obligation under article 2121(2), known as usucapio libertatis. The clause is attached to the property, and nothing showed that the defendant was expressly released from it.

On the curtilage, the defendant said the first court should not have departed from its experts on a technical point. The court accepted that under article 681 of the Code of Organization and Civil Procedure a court needs serious and valid reasons to do so. The first court gave them, relying on two earlier judgments on the same clause brought by the same plaintiff.

The court read clause 4 as meant to keep open space and restrain development. Planning guidance issued in 2007 could not show what the parties meant in 1966. A garage and pool below road level are development and breach the clause; otherwise, in the court's words, "parti ma tgħaddix mill-bieb, iżda tgħaddi mit-tieqa!" (a party does not go through the door, but through the window).

The only part of the wall above four feet was the party wall with another property, and the appeal did not address the first court's reasoning on it. The court held that the losing party bears the costs under article 223 of the same Code and refused the plaintiff's request for double costs. The six-month term runs from 10 March 2026.

Why it matters

A buyer of property held on ċens must read the original grant, not only the last deed or the note of enrolment. A clause limiting coverage or requiring open space can reach structures below ground level. An emphyteuta cannot rely on the passage of time to shed a building condition.

Where it sits

Emphyteusis splits ownership between the direct dominium, kept by the grantor, and the useful domain, held by the grantee who pays the ground rent. Conditions in the grant bind every later holder unless another deed removes them. Acquisitive prescription needs a good title, good faith and 10 years' possession under article 2140, while article 2143 sets 30 years for all actions.

On the curtilage, the court followed the Court of Appeal (29 April 2005) and Edrichton Holdings Ltd vs Kidds Holdings Ltd, decided by the First Hall on 17 May 2005. It applied the rule that like cases are decided alike, citing the Court of Appeal of 31 October 2014 and 12 July 2023.

On title searches it cited the Court of Appeal (30 April 2009) and Mercury p.l.c vs Persona Limited (Court of Appeal, 29 February 2024). On prescription it relied on the Court of Appeal of 20 July 2020, 30 September 2016 and 9 October 2025, and on departing from experts, the Court of Appeal of 12 July 2023 and 9 February 2001.

Source

Court of Appeal (Superior Jurisdiction), 945/2010/3, 10 March 2026.