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The repossession of a property must be clearly mentioned as an action of spoliation

Arnaud's mother lived in a property in Valletta but once she passed away, his sister changed the locks, not allowing him to enter

malcolm_mifsud
Malcolm Mifsud
3 November 2017, 7:51am
This was held in a judgement delivered by Mr Justice Silvio Meli on 24 October 2017 in Vincent Arnaud v Salvina Abela. In his application Arnaud explained that his mother lived in a property in Valletta and he was given the key. However, when his mother died, his sister Salvina Abela changed the locks, not allowing him to enter. He asked the Court to order the defendant to allow him access and to allow him to change the lock.

Abela filed a statement of defence where she claimed that Arnaud had no right to change the property, since it was a rent property. She also claimed that Arnaud was using this action to take possession of the property.

Mr Justice Meli analysed the facts of the case. In the evidence produced, the property was part of a complex of rooms in which seven families lived, but all shared one common electricity meter. When the mother died in 1989, the defendant did change the locks and the plaintiff was not allowed in. The plaintiff accused his sister of taking movables from the property, which were part of the inheritance.

In his submission, the plaintiff told the Court that this was a possessory action which was intended to give him access to the property. The Court quoted Martin Vella et v Loreta Borg et decided on 3 May 2012, which held that the Civil Code provides for two possessory actions. In Article 534 it lays down an action where the possessor will remain in possession while subject to molestation, while Article 535 of the Civil code regulates the action of spoliation. IN fact Article 534 reads:

“Where any person, being in possession, of whatever kind, of an immovable thing, or of a universitas of movables, is molested in such possession, he may, within one year from the molestation, demand that his possession be retained, provided he shall not have usurped such possession from the defendant by violence or clandestinely nor obtained it from him precariously.”

"Plaintiff accused his sister of taking movables from the property, which were part of the inheritance"
While Article 535 stipulates:

“535. (1) 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, as provided in article 791 of the Code of Organization and Civil Procedure.

(2) Such reinstatement shall be ordered by the court even though the defendant be the owner of the thing of which the plaintiff has been despoiled.”

Therefore, the actio manutentionis under Article 534 is intended to stop the violence dispossession and it is not intended to place the plaintiff back into possession. Therefore, it exists to allow the enjoyment of peaceful possession. This remedy is given when there is possession of whatever nature. This action must be filed within one year. 

The Court pointed out that a judicial letter was sent on 10 December 2007, but the action was filed on 15 May 2013. Furthermore, not all of the elements of actio manutentionis did exist and therefore, the action failed.

Then Mr Justice Silvio Meli moved to turn down the claims and upheld the defendant’s pleas.

malcolm_mifsud
Malcolm Mifsud is a partner at Mifsud & Associates.
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