The First Hall Civil Court in the case of ‘Rita Borġ Weaver vs John Pace Antji Calov’ [1] outlined a clear distinction between the 10 year and the 30 year acquisitive prescription and stressed that the lapse of time is not the only difference.
Prescription is a mode by which a person may acquire a right by a continuous, uninterrupted, peaceable, open and unequivocal possession for a time specified by law.[2]
In the aforementioned case, the plaintiff in her application to the court stated that she is the owner of a property which she had acquired back in 2015 – the airspace of the property was also included in the sale. However, the defendants, who were the plaintiff’s neighbours had been preventing the plaintiff from accessing a portion of her roof due to the presence of a wall.
The defendants owned an adjacent property to that of the plaintiff along with the roof of their own property, however the contract whereby they had acquired their property did not grant them any rights over the roof of the property of the plaintiff. The plaintiff therefore requested that the court declare the portion of the roof occupied by the defendants as being unlawfully held and to order them to stop obstructing her from taking control of it.
In turn, the defendants raised several defences, primarily that the action was time barred under articles 2140 and 2143 of the Civil Code.[3] The court clarified that the purpose of this action was to establish the plaintiff’s right to a portion of the roof. Citing precedent[4], the court highlighted that in such cases, the burden of proof rests on the party claiming the ownership.
The plaintiff must do more than show that the property does not belong to the defendant. The defendant does not need to present any proof unless they are claiming ownership of the property themselves. Defences can only be made if the defendant asserts a title to the property, not just possession.
The plaintiff must prove that the property title did not originate from someone else or alternatively that the property was transferred to him. If unable to show original ownership, the plaintiff can demonstrate that their title is stronger than the defendants. The court will then compare the titles to the property, if the defendant also claims ownership.
In this case, the defendants argued that the action is time-barred by relying on articles 2140 and 2143 of Chapter 16 of the Laws of Malta, which refer to article 530(2) of this same chapter. The defendants claimed that possession of the roof was established by the previous owners who had inherited the property in 1945.
Article 2140 of Chapter 16 addresses acquisitive prescription after the lapse of 10 years. In the case of ‘Ray Camilleri vs Aldo Farrugia’[5] the court outlined the requirements for this type of prescription; a valid title for transferring property, possession in good faith, continuous, uninterrupted, peaceful and public possession for 10 years with no legal disputes. All these conditions must be proven and must coexist for the claim to succeed. If any one of these elements is missing, the plea of prescription will fail.
Furthermore, the court then proceeded to examine the existence of a 30-year acquisitive prescription. Whilst referencing an earlier case ‘Emmanuele Inguanez vs Carmen Bonnici Et’[6] the court concluded that this type of prescription requires legitimate possession of the property for a period of 30 years. The court also noted that the way Article 2143 of Chapter 16 of the Laws of Malta was invoked, aligned more with extinctive prescription rather than acquisitive prescription.
It clarified that although the lack of use of a property does not eliminate one’s right over it, for the 30-year prescriptive period to apply, the continuous, uninterrupted, peaceful and exclusive possession of the property is necessary. Possession can even be transferred from previous owners.
In ‘Rita Borġ Weaver vs ‘John Pace Antji Calov’ the evidence presented focused on the existence of the wall on the roof, where it was argued that the plaintiff and the previous owners had lost their rights to this section. However, this alone was not enough as the defendants needed to demonstrate that the previous owners had excersised their rights under Article 2143 of Chapter 16 of the Laws of Malta. Whilst good faith is not required, possession must still be proved in accordance with Article 524(1) of the Civil Code.
It is insufficient for witnesses to simply recall the wall’s presence or its association with the owners. It must be shown that the owners were aware of its existence. One witness for example, testified that despite being the owner, she never visited the property because it was rented, and this meant that the prescriptive period could not apply.
You may wish to read:
Key Considerations in Property Transactions: The Promise of Sale (Konvenju) (Part 1 of 2)
Key Considerations in Property Transactions: The Deed of Sale (Part 2 of 2)
Peaceful Possession: Understanding the Warranty in Real Estate Transactions
For more information or assistance related to Civil law in Malta please contact Dr Robert Tufigno and Dr Delilah Vella.
[1] FHCC, 18/03/2019 Rik Nru. 468/17TA
[2] Article 2107(1), Chapter 16 Law of Malta.
[3] Chapter 16, Laws of Malta.
[4] FHCC, Anthony Mizzi vs Alfred Cachia Noe (867/1996) (15/03/2011).
[5] FHCC, COA, 27/01/2011.
[6] 26/05/2006, Court of Appeal.