Limitations to the acquisition of property by prescription

If one holds property on behalf of someone else, then one cannot acquire it by means of the 30-year rule

The Civil Court has decided that acquiring property through the lapse of 30 years cannot take place if it is held on behalf of a third party. This was decided in the First Court of the Civil Courts on 24 April 2013 by Judge Joseph Azzopardi in Alfred and Concetta Borg and Constantino and Mary Borg versus Nazzareno Vella.

The Borg family filed a civil action against Nazzareno Vella, wherein they asked the court to declare land between Swieqi and St Julian's to be their exclusive property and Nazzareno Vella to be occupying it without a valid and legitimate title. They also asked the court to order that Mr Vella be evicted from this land. The Borgs explained that they had allowed the defendant's grandfather, Kalcidon Vella, to work the land in question on mere tolerance. They asked the defendant to vacate the land, but he refused.

On the other hand, Nazzareno Vella pleaded that he and his father had occupied the land for around 50 years. His father, Antonio Vella, was given this land not from the plaintiffs, but from a certain Giuseppe Sciberras. The Vellas had worked the land ever since.

Judge Azzopardi pointed out that in similar cases the plaintiffs would have to prove their title on the property beyond a shadow of a doubt, as many previous judgements had stipulated. However, in recent judgements this rule has been relaxed, such that one party may prove that the other party has a lesser title over a property. This was the case in the Court of Appeal on 12 December 2002 in John Vella v. Sherlock Camilleri. The same principle may be used in the Borg-Vella case because the defendant is claiming to have title.

The Borg family presented in court copies of a contract for the acquisition of the property in question, together with receipts of ground rent.

Mr Vella is claiming that the property is now his because he was in possession of same for over 30 years, as allowed in Section 2143 of the Civil Code. Judge Azzopardi entered into the elements of this mode of acquisition, in that the possession must be in good faith, legitimate and continuous, amongst others. However, if one holds property on behalf of somebody else, then one cannot acquire it by means of the 30-year rule. In this particular case, Nazzareno Vella himself is saying that the land was not given to his father by the owners but by Giuseppi Sciberras. This was not proved by any contract or agreement.

The Court concluded that the evidence directed towards the defendant knowing that the property was not his and it having been given to the Vella family by mere tolerance. The Court therefore upheld the requests of the plaintiffs and gave Nazzareno Vella two months to vacate the property.

Malcolm Mifsud is a lawyer with Mifsud & Mifsud Advocates

[email protected]

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