A quintessential Mediterranean family is typically numerous, though whilst this may be a positive quality, it may also bring about several legal complications upon the death of property owners. Very often, a property devolves onto several co-heirs following the death of a family member resulting in a considerable number of siblings inheriting shares of the same property. When those siblings pass away, their children inherit their shares, and the cycle continues until the property is ultimately sold.

This often leaves families in limbo over what the fate of the property ought to be i.e. whether it should be sold or kept. The most common obstacles are dissenting co-owners who do not wish to authorise the sale and co-owners who have since emigrated and are no longer contactable and/or traceable. Despite being in majority, these co-owners however, cannot proceed with the sale once there is a minority who do not want to and/or cannot authorise the sale for their respective share.

Whilst co-owners do have a number of options contemplated by law, the most commonly used is the mechanism contemplated by Article 495A of the Civil Code where co-owners fail to agree in respect of a sale of a thing held in common. The intention behind this mechanism is precisely to address these types of situations where the majority of co-owners wish to sell the co-owned property, but the minority do not want to and/or cannot authorise the sale. If the Court establishes that the required elements contemplated by this mechanism are satisfied, then they may intervene and order that the property be sold.

These elements were aptly explained by the First Hall Civil Court in the judgment, Abela Carmelo et vs Fiorella Abela where a group of 9 co-owners who all descended from a certain Tereza Abela, wanted to sell the inherited property, but one co-owner had emigrated to England and was not contactable. The 9 co-owners opted to make use of Article 495A to request the Court to authorise the sale of the property without the defendant’s consent.

In this case, the Court explained that saving from cases of condominium or necessary community of property, where co-ownership has lasted for more than 10 years (this has now been reduced to three), and none of the owners has instituted an action before a court or other tribunal for the partition of the property held in common, and the co-owners fail to agree with regard to the property, the court shall, if it is satisfied that none of the dissident co-owners are seriously prejudiced thereby, authorise the sale in accordance with the wish of the majority of co-owners regard being had to the value of the shares held by each co-owner. This is particularly common with co-heirs who would have since emigrated, passed away and were inherited by their children who have no contact with their Maltese relatives, and vice-versa.

In such cases where one co-owner is completely untraceable, co-owners must still refer to Article 495A as if the untraceable minority co-owner is in dissent, as ultimately, they cannot authorise the sale. The Courts will appoint a Curator to represent the minority co-owner/s, and the Courts will proceed to analyse whether such sale ought to be seriously prejudicial to that co-owner. If not, it will authorise the sale.

In the case Josephine Grech pro et noe vs George Joseph Parnis decided by the First Hall Civil Court, the owner of 1/8th undivided shares said that since he wished to purchase the property for himself and the other co-owners were negotiating with third parties, only to be informed after the promise of sale was signed, he was seriously prejudiced as he was never given the opportunity to negotiate himself. Whilst his offer was for the same price, it did include a condition where the amount of the consideration was not declared, and therefore, the Court deemed to be his offer less advantageous.

Moreover, the notion of serious prejudice goes beyond a minority co-owner presenting a property valuation higher than that for which the sale is being made, as ultimately, this is not the scope of Article 495A. The aim is to ensure that the sale is fair and non-prejudicial as confirmed in Philip Agius et vs Av. Josette Sultana et noe et decided by the First Hall Civil Court whilst also ensuring that the transfer is facilitated. It is however, worth noting that the notion of ‘seriously prejudiced’ is not defined at law and has been thoroughly interpreted by our Courts.

In Nutar Richard Vella Laurenty et v. John Vella Laurenti et, Court of Appeal, the significance of the severity of the prejudice was also discussed. The Court clarified that the purpose of the article was not to determine the exact value of the property, as this is inherently subjective, but rather to ensure a fair price for all co-owners.

Article 495A of the Civil Code is therefore a useful tool to facilitate such sales by almost superseding the dissent of the minority co-owners, subject to the obvious exceptions. Whilst there is no definition at law as to what constitutes serious prejudice, dissenting co-owners must amply prove that such a sale will be of serious prejudice in such a way that goes beyond a disagreement in property valuations.