The discouragement of community of property under the Civil Code : the cases of partition and sale by agreement of the majority of the co-owners

Abstract

The Introduction as to the current study will be focusing on the manner in which the Maltese legal system and in particular our Civil Code is built around the discouragement to the concept of community of property. Chapter I – In this Chapter, a theoretical study will be carried out so as to examine whether such concept emanates from the continental legal systems emanating from Roman Law and subsequent codes and whether such concept was also encompassed in foreign civil codes. This initial study will channel further discussion as to the manner in which the legislator from time to time envisaged the community of property within a civil legal system. The second step will entail the identification and thorough examination of those specific articles in our civil code which in practice discourage co-owners from entering into a community of property and/or continuing to be a part of one. Essentially, one may make reference to two main articles in this regard: Article 493 and Article 496 of Chapter 16. Chapter II – This chapter will deal with those cases where the legal rules as to partition apply. Partition will be evaluated in light of how effective of a remedy it is. This will mainly entail an examination of a number of judgements and highlighting scenarios wherein Partition as a remedy fails to liberate co-owners from the state of community. Chapter III – The introduction of Article 495A in 2004 and the subsequent amendment in 2016 serves as a mechanism wherein – under certain conditions which are clearly set out by law - the legislator allowed a strict 3-year time frame for co-owners to decide what on the future of their common property. Focus will be put on the limitation imposed by Article 495A and the strict criteria that the legislator has imposed also by reference to case-law which has further identified those particular instances where this article may not be availed of. In the Conclusion a summary as to the diverse methods of terminating the community of property envisaged by the Maltese Civil Code will be carried out. Some a critical evaluation of the remedies available will also be put forward.