There are few areas of Maltese civil law where the distance between logic and law has become so embarrassingly visible as in the interpretation of Article 426 of the Civil Code. The provision is simple enough: when the storeys of a building belong to different owners, each may open balconies or windows in the external wall of his own storey, provided the strength of that wall is not impaired. For decades, however, the courts have read this article as though it were a trap rather than a right — limiting its application only to façades that directly touch a public street, and excluding those that overlook a private front garden, even when that garden itself abuts the street.
The result is a doctrine that has reduced architecture to a legal fiction. In the recent judgment of Attard vs Bonello (App. Ċiv. 778/20/1, 14 October 2025, per Chetcuti C.J., Mangion, Mercieca JJ.), the Court of Appeal once again applied this rigid line of reasoning. The facts were unremarkable: Bonello had constructed a balcony over a front garden belonging to the Attards — a garden which, importantly, opened directly onto the public street. Yet, by the Court’s reckoning, that small patch of private soil sufficed to transform the entire façade into a ħajt diviżorju (dividing wall), thereby excluding the operation of Article 426. The balcony was accordingly treated not as an architectural feature but as an unlawful servitude over the neighbour’s airspace.
Having tied itself in this doctrinal knot, the Court then appeared to recognise its own entanglement. Instead of ordering the total removal of the structure, it contrived an extraordinary half-measure. The Court held that the balcony must be demolished, but the door leading to it “għandu jiġi sostitwit b’tieqa magħluqa u opaka, u possibilment b’velestrun żgħir għall-arja fuq in-naħa ta’ fuq tagħha” — [should be replaced by a closed and opaque window, possibly with a small upper vent for air]. One might call this an architectural exception, but it is more accurately a judicial apology rendered in glass — an attempt to reconcile the absurd with the habitable.
This self-conscious compromise exposes what Maltese property law has long refused to admit: that the so-called “restrictive interpretation” of Article 426 is nothing more than an inherited error, repeated for so long that it has been mistaken for orthodoxy. A wall that forms part of a façade overlooking a front garden which itself abuts the street is, by every architectural, urbanistic, and rational standard, an external wall. It faces the public realm, shapes the streetscape, and bears no more intimacy with the neighbouring property than any façade on a narrow street in Valletta or Sliema. To treat it as a dividing wall is to pretend that a low parapet or flowerbed has the power to redefine reality.
That is why Maltese law should have the courage to return to the far more coherent reasoning expressed by Mr Justice Anthony Ellul in Joseph Camilleri vs Adrian Farrugia et (Prim’Awla, 14 December 2012, 1283/2011/AE). In that case, Ellul J. explained —
“Il-fatt li l-ħajt ta’ barra ma jikkonfinax mat-triq ma jfissirx li l-konvenuti ma kellhomx jedd li jagħmlu bieb u gallarija.”
[The fact that the outer wall does not directly abut the street does not mean that the upper owner had no right to construct a door or balcony.]
He continued:
“Jekk wieħed kellu jinterpreta l-provvediment bil-mod li għamlu l-atturi, ikun ifisser li l-Artikolu 426 tal-Kodiċi Ċivili ma jkunx jista’ jiġi applikat fejn il-parti ta’ quddiem tad-dar fil-pjan terran għandha daqsxejn ta’ parapett kif għandhom l-atturi.”
[If one were to interpret the provision in the manner proposed by the plaintiffs, it would mean that Article 426 of the Civil Code could never apply where the ground floor happens to include a parapet such as that owned by the plaintiffs.]
This reasoning is rooted in purpose rather than geometry. Ellul J. correctly saw that Article 426 concerns the structural independence of storeys, not the cartography of garden walls. Its restriction lies in ensuring stability, not in forbidding light. His approach, though straightforward, reconciles the legal text with architectural sense — preserving the right to natural openings without eroding the neighbour’s legitimate interests.
The recent appellate judgment, by contrast, continues to cite earlier authorities such as Sultana v Cassar (1992), Zammit Lupi v Ripard (2006), and Vella v Micallef (2014), as though repetition could confer reason. The Court’s “solution” — the replacement of a balcony door with a sealed, opaque window — is not a triumph of equity but a confession of discomfort. It leaves the doctrine intact while tacitly admitting that it is absurd.
By following Camilleri vs Farrugia, Maltese law would recover the clarity and moderation that have long eluded it. The façade of a building overlooking a front garden that itself abuts the street should, by law and by common sense, remain an external wall. To deny this is to divorce the Civil Code from the physical world it purports to regulate.
