This is the first part of a 2-part series on property law actions emanating from civil law in respect to the notions of ownership and possession. Ownership and possession are two distinct notions which although may intertwine, offer different legal avenues to defend the title to property.
Actiones petitoriae are legal actions which establish the existence of property rights, real rights.
Actio rei vindicatoria is not a judicial remedy which is expressly mentioned in our law and is derived from Roman law. A successful outcome would entail the enforcement of a person’s real right against a third party currently in possession of the property, in order to regain possession. However, the possession held by the third party must be proved to be against the will of the owner. Hence, the owner would have to prove the following:
The juris tantum presumption is to be applied in favour of the defendant when opting for this action. Therefore, the defendant would only be required to prove ownership of the property held in his possession if the plaintiff has proved his title. Proving derivative title is sufficient for such proceedings.
Proof of ownership may be through derivative title or original title. Derivative title refers to the title which is transferred by a previous title holder. On the other hand, original title refers to the title being acquired by acquisitive prescription, which may be problematic to prove.
For the instances whereby both parties are claiming title by virtue of original title, actio publiciana would be the most suitable remedy. This action is a variant to the actio rei vindicatoria. The distinction between the two actions lies in the burden of proof for the enforcement of this action. This action allows proof of title to be determined by the party who can demonstrate that they possess the superior title. Other than this variation in proof, the effects are the same. Consequently, this implies that this action necessitates less rigorous proof, as the burden is merely to establish superiority over the opposing party.
The Courts have established the efficiency of the actio publiciana. This is due to the action requiring a comparative study between the titles of the parties. In fact, in a judgement the Court stated “fl-interess tal-ġustizzja, aċċettaw il-possibiltà li attur jirnexxi fil-kawza li jagħmel in forza tal-actio publiciana[1]” after having instituted the cause on the basis of actio rei vindicatoria[2]. Therefore, this case confirmed the similarity between the two actions and also provided the possibility to shift an action to another during proceedings.
Hence, success in both actions would bring the eviction from immovable property and allow the plaintiff to gain exclusive control and possession of the thing or property.
Actio finium regundorum is another legal avenue which an owner may utilise to enforce his rights. The aim of this action is to be able to ascertain and fix the boundary line between neighbouring tenements. Hence, this action is filed when the boundary line is not known or not permanently established.
This action is only filed against the person having ownership of the neighbouring tenement. The boundary line shall be marked in visible and permanent marks as a joint expense to both owners.
Doubt as to the presence of the boundary line shall be a determining factor for the upholding of such action. Such uncertainty may be objective or subjective:
In the presence of any of the two doubts, an owner may exercise his absolute and exclusive rights over his land and lodge this action to permanently fix the boundary wall. This may be done by a dividing wall.
The plaintiff shall on a balance of probabilities prove where the boundary line should be placed. This is of particular importance when the doubt to the presence of the boundary wall is subjective.
The Court was able to outline the objective behind the actio finium regundorum, whereby it stated “Din l-azzjoni tista’ titressaq biss fejn żewġ proprjetajiet ta’ sidien differenti jkunu jmissu ma’ xulxin u fejn hemm dubju dwar fejn tibda l-waħda u tintemm l-oħra. L-għan tal-actio finium regundorum huwa dak tad-determinazzjoni oġġettiva tal-fond u l-aċċertament ta’ l-estensjoni tad-dritt ... u għalhekk ittendi li telimina l-inċertezzi tad-demarkazzjoni bejn żewġ fondi u tagħmel is-sitwazzjoni ta’ fatt kompatibbli għal dak tad-dritt[3]”[4].
These actions are vital for effectively asserting and protecting property rights. In Part 2, we will explore actions allowing protection to possessors, even against the owner.
Author: Neil Gauci
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[1] English translation: In the interest of justice, it is accepted that there is the possibility of the plaintiff succeeding in an action of actio publiciana.
[2] Vella John et vs. Camilleri Sherlock, Superior Court of Appeal, 12 December 2002.
[3] English translation: This action can be employed when there are two separately owned adjacent properties and there is doubt on where a property starts and ends. The aim of the actio finium regundorum is to objectively determine the boundaries of the tenement and the rights appurtenant thereto … and therefore, intends to eliminate uncertainties in relation to the boundary line between the two tenements and create a situation of fact that is compatible to that of right.
[4] Cremona Barbaro Markiza Beatrice vs. Polidano John, First Hall Civil Court, 3 February 2005.