The First Hall Civil Court presided by Mr Justice Joseph Zammit McKeon in the case “Emanuel and his wife Filippa Micallef et vs Carmel Farrugia and others”, on October 24, 2011 held, among other things, that a certificate of title “guaranteed” and registered in the Land Registry under Chapter 296 could be revoked by the court on the request of a third party, establishing title by way of acquisitive prescription under the Civil Code.
The facts in this case were as follows.
Mr and Mrs Emmanuel Micallef had in their possession a field located in Wied Qirda, limits of Żebbuġ, measuring 1,068 square metres, which they acquired from T. Cilia by a contract dated April 29, 1996, in the acts of Notary Philip Saliba. Teodisio Cilia had purchased a part of this field by virtue of a contract dated December 23, 1943.
On October 21, 2005 Mr and Mrs Demicoli filed legal proceedings against Mr and Mrs Micallef, requesting the court to evict them from an area measuring 867 square metres. They claimed they had purchased this land by a contract dated February 11, 2005 from Amal Aluminium Works Ltd.
Amal Aluminium Works Ltd had acquired the property by a contract dated October 11, 1995 from Mr and Mrs Carmel Farrugia. Mr and Mrs Farrugia had purchased the land from G. Micallef and others on June 1, 1987. Their title as well as that of Amal Aluminium works and Mr Farrugia were registered with the Land Registry.
Mr and Mrs Micallef disputed the claims made by Demicoli over the land occupied by them. They claimed to have acquired title by way of 30-year acquisitive prescription, well before 1987, when Mr Farrugia had applied to register his title with the Land Registry.
Their main contention was that any certificate of title, even if guaranteed under Chapter 296, remained subject to the rights of persons having “overriding interests” in terms of article 43(C) and (d) of Chapter 296 of the Laws of Malta. Under article 43, the rights of a person who acquired title by prescription superseded those holding a guaranteed certificate of title.
Faced with this situation, Mr and Mrs Micallef proceeded by instituting these separate legal proceedings to request the court to order a correction in the Land Registry.
They asked the court to declare that they possessed their land with a valid title, satisfying the requirements of acquisitive prescription before June 1, 1987; and that their title prevailed over that of Mr Farrugia. They further requested the court to confirm their title over the land; and that it was due to malice, gross negligence or error that Mr Farrugia had included the land in question in the contract dated June 1, 1987, as well as in the contracts whereby Amal Aluminium and Demicoli had allegedly acquired the property.
In addition, Mr and Mrs Micallef requested the court to order all defendants to correct the mistakes in the registration of their title on the Land Register as well as in all public contracts relating to the transfer of the property; and to order the Registrar of Lands to remove any entry where it was stated that defendants were title holders of the land.
The court was asked, furthermore, to set the date, time and place for the corrections to be made to the relative public deeds and to appoint a curator to appear on behalf of any person who failed to attend.
On October 24, 2011, the First Hall Civil Court gave judgment by accepting Mr and Mrs Micallef’s requests in the light of article 43 of Chapter 296, on grounds that they had acquired title by 30-year acquisitive prescription.
Even if 10 years had lapsed from the date of the registration of Demicoli’s title in the Land Registry and even if their title was ‘’guaranteed’’ under Chapter 296, certificates of title issued by the Lands Registrar could still be challenged in terms of article 43, maintained the court.
The court was satisfied that Mr and Mrs Micallef had established their title by way of 30-year acquisitive prescription.
It declared that Mr Farrugia had erroneously included the land in question in the contract dated June 1, 1987, which mistake was again repeated in the contracts of October 11, 1995 and in the last contract dated February 11, 2003, whereby Demicoli had allegedly acquired the property.
The court ordered the necessary corrections to the Land Registry within three months from the date of this decision. Notary Joseph R. Tabone was appointed to publish the relative acts of correction on January 24, 2012.
The court gave the following reasons for its decision.
As to the nature of the legal action, the court noted that Mr and Mrs Micallef’s legal action as formulated was not the actio reivendicatoria. This meant that the level of proof required in this case was on the basis of a balance of probabilities, and not that required to establish an actio reivendicatoria. Reference was made to Chircop et vs Micallef et, dated April 28, 2000 (CA).
As to the 30-year acquisitive prescription, in Caruana et vs Vella 13/03/1953, the Court of Appeal had held that two elements had to be satisfied: possession and the intention to possess as owner. Possession had to be continuous, peaceful, public and unequivocal. This court had to consider the issue of 30-year acquisitive prescription in the context of Chapter 296 of the Laws of Malta.
As explained by the Court of Appeal on May 8, 2003, in Grima vs Frendo, Chapter 296 was a special law, intended to create a system whereby a certificate of title was issued to grant its holder absolute title erga omnes. It was designed to create certainty in relation to title of immovable property. The registration of a person as owner with a “guaranteed” title gave such person an irrevocable title, which could not be challenged save as provided in Chapter 296.
The Lands Registrar has the right to make corrections but no exclusive jurisdiction
The court noted that for 30-year acquisitive prescription, all Mr Micallef had to show was legitimate possession animo domini. There was no need of proof of giusto titolo or good faith; re: Pace vs Abela, dated 05/07/2004.
The fact that Amal Aluminium claimed to have cut trees on the property without opposition did not mean that Mr and Mrs Micallef were not in possession. The legal jurist Baudry Lancantinerie writes “Non è necessario che il possessore sia stato in contatto costante con la cosa”.
The court observed further that there was no proof that the company had gained access to the field legitimately. It also noted that Mr and Mrs Micallef had made repairs to the rubble wall, at their expense, long before these proceedings – which clearly indicated their unequivocal possession.
The court considered article 2143 Civil Code which provides that “All actions, whether real, personal or mixed, are barred by the lapse of 30 years, and no opposition to the benefit of limitation may be made on the grounds of the absence of title or good faith.’’ For the purposes of 30-year acquisitive prescription it was enough to show that the person had occupied the land with the intention of becoming owner (animus domini); re: Pace vs Abela. Possession had to be continuous, not interrupted, peaceful, public and not equivocal, pointed out the court; re: Chetcuti et vs Xerri dated 31/05/96 (CA).
It was not sufficient to occupy the land on tolerance; re: French et vs Salomone et.
It had to appear manifestly that a person occupied animo domini and was recognised as such, as owner; re: Borg vs Farrugia noe et CA dated 15.03.1957.
The court noted, in addition, that Mr Micallef had in his favour a juris tantum presumption in proving that his possession was continuous. Article 529 Civil Code provides that “Actual possession shall not operate so as to raise a presumption of former possession unless the possessor has a title; in which case, in the absence of proof to the contrary, he shall be presumed to have possessed since the date of the title.’’
As to guarantee title, even if 10 years lapsed from the registration of defendants’ title in the Land Registry, a “guaranteed” title remained subject to prevailing interests. The court was satisfied that Mr and Mrs Micallef had acquired title by 30-year acquisitive prescription.
The Land Registrar had the power to make corrections in the register, subject to an interested person’s right to appeal to the Court of Appeal. Reference was made to article 52 of Chapter 296.
Although the registrar had the right and duty to consider issue of title, this did not mean that he had exclusive jurisdiction on such issues.
The holder of a guaranteed title under Chapter 296 had irrevocable title, which could not be challenged except in the cases mentioned by law (article 22). In this case Mr and Mrs Micallef were claiming that the registration of defendants’ title in the Land Registry was incorrect, and that it should be corrected.
As they had established to the court’s satisfaction that they had acquired the land by way of 30-year acquisitive prescription, the court upheld their requests.
The court noted that an error had been made when Mr Farrugia registered his title in the Land Registry. But it did not result that this had been done fraudulently.
Dr Grech Orr is a partner at Ganado & Associates.