Article 489 of Chapter 16 of the Laws of Malta defines co-ownership:

“Community of property exists where the ownership of one and the same thing, or of one and the same right, is vested pro indiviso in two or more persons.”

The community of rights or the community of things does not necessarily exist in relation to the right of ownership which is the fullest right a person can have over a thing but may also exist in relation to some other real or personal right.

The essential elements of this definition are as follows: -

• The object which is subject to the community of property – this may either be a thing or a right. A thing is tangible whilst a right is an entitlement which a person has over a thing in relation to a thing. Therefore, there may be co-ownership either on the thing itself or a community of the same right (Example: A right of usufruct which vests simultaneously in two or more people;

• The rights of the co-owners on the common thing are held pro-indiviso meaning that the rights are held in an undivided way by two or more people. In the sense that a common thing is not yet divided into as many different distinct portions as there are undivided shares among co-owners.

Ways co-ownership can arise:

Essentially, there are 3 ways in which community of property can arise:

1. By agreement of the parties;
2. By succession; and
3. By operation of the law

The regulation of community of property is divided into two parts under the Civil Code. Articles 489 to 494 deal with the rights and obligations of co-owners during the term of the co-ownership while articles 495-523 deal with the different modes of termination of community of property.

The basic principle of the law of co-ownership is that unless expressly prohibited by law the agreement among the co-owners prevails. In the absence of such an agreement on the rights and obligations of the co-owners, the provisions of the law should be applied. However, first one must determine how the shares of the co-owners are divided.

This is done through looking at the source of the community, whether it was made by a public deed or by virtue of a will. In the absence of such proof pertaining to the shares held by the co-owners, article 490 of Chapter 16 of the Laws of Malta presumes that unless the contrary is provided, the shares of the co-owners are presumed to be equal. Article 490 further provides that every co-owner would have to participate in the advantages and burdens of the community in proportion to his share.

Every co-owner or participant in the community has the right to make use of the thing held in common, even if he is not the sole and exclusive owner of that thing. However, as provided for under article 491 of the civil code and as confirmed by the court in the case ‘Silvia Caruana vs Mary Genovese’ (2004)[1] there exist 3 limitations to this wide right of the co-owners to make use of the thing held in common.

Firstly, the use is to be made according to the destination of the property as established by the usage. No prejudice can be caused to the common thing or to the right of the other co-owners, to use the common thing according to its destination. Secondly, the use must not be made against the interest of the community. Thirdly, the use must not be made to prevent the other co-owners from making use of the common property held according to their rights.

In the case of ‘Paulina Stagno Pro et Noe et. Vs Carmelo Buġeja Et.’ (2004)[2]the court argued that as contemplated under article 491 of the Civil Code, every co-owner can make use of the common property; as long as such co-owner does not make use of such thing, to the detriment of the other co-owners.

In the aforementioned case of Mary Genovese, the court also confirmed that as provided for under article 492, every co-owner may compel the other co-owners to contribute their share to the expenses necessary from time to time for the preservation of the common property, saving the right of any of the other co-owners to release themselves from the liability thereof by abandoning his right of co-ownership.

The common thing must be kept in good condition and preserved in order to safeguard its value as well as to ensure that the other co-owners enjoy their right to also use the thing held in common. However, preservation does not mean alteration. Article 493 of the Civil Code provide that no alterations may be made without the consent of the other co-owners even though such alterations may be beneficial to all.

Therefore, while all co-owners have the obligation to ensure that the common thing is preserved, no alteration whatsoever to the common thing may be carried out except with the consent of all co-owners.

In the case of ‘Emmanuela Farrugia Et. Vs Nazzareno Fenech’ (2005)[3] the court argued that a co-owner does not have the right to make a change in the substance of the property which changes the nature of the object held in common without the consent of all the other co-owners. Therefore, the court stated that changing a land from an industrial site to an industrial building without any doubt constitutes a change in the substance of the object held in common.

In cases where there is disagreement among the co-owners on the enjoyment of the thing held in common, any one of the co-owners may in terms of article 494 of the Civil code apply to the First Hall Civil Court and request the court to give directions on how the thing held in common should be enjoyed and administered.

The state of community can be terminated in one of the following ways: - (i) By Partition, (ii) By Licitation (iii) By the sale of the undivided share of the common thing and (iv) by the sale of the thing held in common irrespective of the opposition of some of the co-owners.

Further insights you may wish to read:

Warrant of Seizure - Mandat ta' Qbid

Warrant of Prohibitory Injunction - Mandat ta' Inibizzjoni

[1] Ref 495/2000/1, Civil Court First Hall.

[2]  Ref 1003/2000/1, Of Magistrates (Civil).

[3]  Ref: 1405/2001/1, Of Appeal (Civil, Superior).