Legal distances in the case of excavations, windows, balconies or other similar projections : an analysis

Abstract

Under Maltese law the provisions dealing with legal distances are laid down under Title IV of the Civil Code called 'Of Praedial Easements' since they belong to the class of jura urbanorum praediorum and are regarded as a limitation over the right of ownership. The main focus of this dissertation is the provisions dealing with cases of excavations, windows and balconies or other similar projections as it is this particular area of legal distances which gave rise to multiple legal disputes. As can be deduced from the available jurisprudence, overlooking over neighbouring tenements and building soundness thereof are amongst the central reasons for the numerous litigation disputes arising before the Maltese courts in this field. The author shall therefore examine these two outlined concepts, namely neighbours' privacy and building stability, from a legal perspective, with particular reference to the relevant provisions stipulated in Chapter 16 of the Laws of Malta. The approach adopted by the Maltese courts when ruling on these matters shall also be examined in some detail and commented on, given that this area is quite rich in jurisprudential interpretations. Particular reference to the legal provisions' historical background and to the raison d'être shall also be made as to better apprehend the objective behind their insertion in the Maltese Civil Code. Moreover, the question of whether the court interprets these provisions rigorously or else allows for derogations therefrom shall also be dealt with in this dissertation. Furthermore, the author shall analyse the application of these legal distances in the ambit of today's construction and observes whether the law, as drafted, reflects the technological advances in such a field.