Briefly the facts are as follows: the parties who were German were involved in a relationship together and in 1988 they both decided to purchase immovable property in Gozo which acquisition required an AIP permit. The plaintiff was still legally married and in order for her husband not to acquire rights over the immovable property, the parties agreed that the property would be acquired in the name of the defendant with the clear intention that they would be both co-owners of the property in equal and undivided shares between them. Therefore Brigitte Simsch acted as prestanome of Erika Menestret for the ½ undivided share of the property. Their relationship ended and without Erika Menestret’s knowledge, Brigitte Simsch concluded a promise of sale with third parties for the sale of the house. The plaintiff filed an action in Court demanding that she is declared co-owner and subsequently order the defendant to transfer the one half undivided share of the property.
The Court said that ‘mandatory prestanome’ was an accepted principle in our legal system. When property was acquired in the name of a mandatory prestanome, this was done in the name and interest of the mandatory and thus “l-akkwist ta’ immobbli fl-interess ta’ ħaddiehor jiswa avolja l-ftehim dwar dan l-akkwist bejn l-akkwirenti u l-persuna l-oħra ma jkun sar bil-miktub”. The Court also referred to Maria Calleja noe vs Paolo Deguara (Vol34 pt2 p430) were it was held that; “nulla osta in legge a che, senza impugnare un contratto, si dimostri con prove che uno dei contraenti compariva e stipulava per conto e interesse di alter persone non figurante nell’atto ma avente diritto di avocare a se’ quello che vi si e’ contrattato nel proprio interesse”.
In this case, the Court was satisfied that the defendant was acting as the plaintiffs prestanome for one half undivided share of the property. The Court noted that the parties lived together as a couple at the time of the purchase. The understanding was that Brigitte Simsch would acquire the property in Gozo in her own name. This was corroborated with evidence from friends and family who all testified that it was known to all that the property was divided between them both. The plaintiff paid for furniture, was involved in the layout of the property and both continuously referred to the property as though it was shared between them.
Based on proof submitted by the plaintiff, on March 28, 2014 the Gozo Court of Magistrates (Superior Jurisdiction) accepted the plaintiffs requests and declared that the property was acquired by Brigitte Simsch as a mandatory prestanome on behalf of Erika Menestret and this in so far as one half-undivided share of the property was concerned. The Court ordered Brigitte Simsch to transfer to Erika Menestret one half undivided share of the property, and appointed a notary to publish the relative contract, so that one-half undivided share of the property be transferred to her. With regards to the furniture inside the property, the Court declared that the moveable objects including furniture and other items in the house were partly of Erika Menestret and partly co-owned jointly by the parties. It authorized Erika Menestret to recover all moveable items in the house which were her sole property within two months.