Possession versus Tolerance: The salient element of the Actio Spolii

In its judgement delivered on the 14 December 2023, in the names of Oreste Attard and Patricia Attard (collectively the “Plaintiffs”) vs Russell Attard and Alistair Attard (collectively the “Defendants”), the First Hall Civil Court (the “Court”), presided over by Madame Justice Dr Joanne Vella Cuschieri, considered the elements of the ‘Actio Spolii’, particularly the element of possession in contrast to mere tolerance.

The case revolved around the use and access to a well, which was originally part of a larger piece of agricultural land (the “Land”) leased to Loreto Attard, the father of the Plaintiff and the Defendants’ grandfather. The Land was subsequently divided between the Plaintiffs and the Defendants with the intention of leaving access to the well to both parties. As explained by a representative of the Lands Department, with reference to the original contract of lease entered between the Lands Department and Loreto Attard, in the case of agricultural land containing any borehole, well or electrical installations, the lessor is to leave access being not less than five meters wide and is to be left accessible all the time.

Oreste Attard explained that since he began working the land, he never experienced any issues with accessing the well however when he tried to use the well on the 25 June 2020, he found that the well was sealed off under lock and key. The last time he had been near the well was on the 19 June 2020 and on that day, access was not restricted. When the Plaintiffs approached the Defendants on this matter, the Defendants acknowledged that they had locked the well, arguing that this belonged to them and that the Plaintiffs were only being allowed to make use of the well based on mere tolerance. On the 19 August 2020, the Plaintiffs instituted the ‘Actio Spolii’ arguing, inter alia, that the Defendants actions to restrict their access to the well amounted to spoliation.

Article 535 of the Civil Code, Chapter 16 of the Laws of Malta provides that “Where any person is by violence or clandestinely despoiled of the possession, of whatever kind, or of the detention of a movable or an immovable thing, he may, within two months from the spoliation, bring an action against the author thereof demanding that he be reinstated in his possession or retention…”. Referring to previous Maltese case law on the matter, the Court explained that the purpose of the actio spolii is to preserve public order by prohibiting private individuals from taking the law in their own hands and to ensure that the possession of a thing returns to the person despoiled of possession. Italian jurist Pacifici Mazzoni defines spoliation as any arbitrary carried out by a private individual against the will of the person being despoiled of possession.

The Court reiterated the three elements of the actio spolii being the following:

  1. ‘Actor docere debet possedisse’ – the possession of a thing.
  2. ‘Spoliatum fuisse’ – the act of spoliation which takes place clandestinely or against the will of the person in possession.
  3. ‘Infra bimestre deduxisse’ – the actio spolii is to be filed within two months from the act of spoliation.

The three requirements are cumulative therefore failing to prove one of them would lead to the failure of the action.

  1. Actor docere debet possedisse

The Court explained that the type of possession required in terms of law for the purposes of a successful actio spolii is to be factual and material. Therefore, any form of possession, even for a brief period of time, and even momentary, is sufficient provided that this is not based on mere tolerance. The Court referred to another cased decided by the Court of Appeal on the 30 May 2014 in the names of ‘Philip Agius vs Emanuel Agius’ which held “it-tolleranza jew il-prekarju sakemm jibqghu jezistu jiggustifikaw il-godiment fuq il-haga izda, una volta l-volonta’ tal- koncedent li jtemm ir-rapport issir maghrufa, dan igib ic-cessazzjoni ta’ dan l-istess dritt ta’ tgawdija u mhux mistenni jew tollerat min, b’approfittar, jippretendi li jivvanta drittijiet proprji, li ma baqalux. L-uniku obbligu tieghu jibqa’ dak tar-restituzzjoni lura tal-haga lill-koncedenti.

The Court also referred to the writings of another jurist, Laurent, who holds that, “colui che gode per tolleranza non ha nessun titolo, salvo un consenso del proprietario che questi puo’ ritirare da un istante all’altro”[1]

The Court therefore had to assess whether the Plaintiffs enjoyed possession of the well or whether their access to it was based on mere tolerance. It was noted that:

  • The Land was originally one piece of agricultural land leased to Loreto Attard;
  • The well was constructed by Loreto Attard and his brother (being the Defendants father) in order to serve the whole land;
  • Even though the well was not included in the plans submitted to the Lands Department, these contracts are always made subject to any rights of third parties over the Land in question and therefore the contract alone does not exclude the Plaintiffs possession;
  • A number of years prior to the alleged spoliation, the Plaintiffs and the Defendants agreed to split costs whenever the well was filled with a bowser with the aim of allowing both parties to make use of it; and
  • When the Defendants found that the well was empty, they decided to restrict access even though both parties were still splitting costs when the well was filled with a bowser.

On the basis of the above, the Court noted that the Defendants failed to prove that the Plaintiffs’ access to the well was based on mere tolerance. On the contrary, the Court was satisfied that the Plaintiffs enjoyed possession of the well as required in terms of law and this element of satisfied.

  1. Spoliatum Fuisse

The Court noted that it need not delve deeply into this element since the Defendants acknowledged that they indeed locked access to the well and therefore this element was also satisfied.

  1. ‘Infra bimestre deduxisse’

This third element requires that the actio spolii is filed within two months from the act of spoliation. The Court noted that this is an essential element of the actio spolii and the burden of proof falls squarely on the Plaintiff. This plea can either be raised by the Court on its own motion, in the event the Defendant does not raise it or raised by the defendant himself. The Court explained that this two-month period is an extinctive period in the sense that if the plaintiff fails to prove that the actio spolii was instituted within two months from the date of the alleged spoliation, the action cannot succeed and the remedy is lost.

In this case the Court noted that the Defendants are not contesting that they locked the well on the 22 June 2020. Since the actio spolii was filed on the 19 June 2020, it was filed within the two month period and therefore this element was also satisfied.

In conclusion, the Court rejected the Defendant’s pleas and declared that his actions constituted spoliation in terms of Article 535. The Defendants were ordered to restore the Plaintiffs’ access to the well subject to the existing arrangement between the parties to share the costs when filling the well with a bowser.

[1] Informal English Translation: He who enjoys through tolerance has no title, except for the owner’s consent which he can withdraw at any moment”

Disclaimer: Ganado Advocates is responsible for contributing this law report but was not in any way involved as legal advisor for the parties in the judgement being covered in this law report.

This article was first published on The Malta Independent on 20/12/2023.