In Maltese property law, the issue of servitudes often arises, particularly when it comes to the regulation of distances between properties. A key provision in this area, found in Article 443 of the Maltese Civil Code, dictates that a window must be set back at least 76 cm from a party wall. The intention behind this rule is clear: it serves to protect the privacy of neighbors by ensuring that one property owner does not infringe upon the other’s personal space through overly intrusive openings. The text of Article 443 itself reads:
“It shall not be lawful to open a window, a door, or a balcony looking onto a party wall, unless the distance between the opening and the party wall is not less than seventy-six centimetres.”
Yet, one may wonder: does this 76 cm rule remain essential in all situations? What if a property owner installs a window, but a tall, solid wall between the two properties obstructs the view entirely? In such a case, does the literal enforcement of the rule still serve its intended purpose? Or is the law, in this instance, excessively rigid and detached from practical reality?
This dilemma was precisely at the heart of the 1994 case Emanuel Zammit vs. Anthony Sultana. In this instance, the defendant did not respect the stipulated 76 cm distance when placing windows on the rear side of his building. However, the court of appeal ruled that the privacy of the neighboring property was not affected because the view was blocked by a high dividing wall. The judgment appeared to suggest that the intended outcome of the law—preserving privacy—was achieved, even if the literal provisions were not strictly adhered to.
While the Zammit case may appear to offer a reasonable solution, it is, in fact, a risky approach and one that should not be followed. The case hinges on a practical, outcome-based interpretation, which seems sensible in some contexts. However, recent rulings made it clear that the law does not bend according to practical circumstances.
For example, a more recent judgment in the names Josephine Caruana, Joanna Caruana u l-konjugi Charles Joseph Caruana u martu Josephine Caruana vs Alfred Vella u Ta’ Cerkes Limited (Rik968/17) pointed out that solutions like erecting a wall between properties to block the view do not satisfy the requirements of Article 443. The law, the court emphasized, mandates the precise 76 cm distance, regardless of any other factors that might serve to mitigate the issue of privacy. Whether or not the neighbour’s view is blocked by a tall wall is irrelevant. What matters is that the law specifies this distance, and compliance with the numbers is the primary concern.
Thus, it is vital to recognize that the law does not concern itself with reason, practicality, or the end result. It is not about whether a solution achieves the desired outcome, but about whether the regulations are followed as written. The law on servitude distances is unequivocal: a specific distance must be maintained, and deviations from this are not permissible, regardless of whether they achieve the same outcome in practice.
Thus, attempting to argue that a violation of servitude distances is justified by the result is ultimately futile.
