The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Tonio Mallia and Mr Justice Joseph Azzopardi in the case “Carmelo and Victoria Calleja v Godfrey and Monica Zammit and Maria Concetta Schembri” on February 11, 2014, held, among other things, that a person who enjoyed a thing was presumed to have possession and it was the person contesting who had to prove that such other person did not have possession and enjoyed the thing on tolerance.
The facts in this case were as follows;
Carmelo and Victoria Calleja, the owners of No. 110, Canon Road, Santa Venera, installed their water tank on the roof of the overlying tenement, belonging to Godfrey and Monica Zammit and Maria Concetta Schembri, or any one of them, originally with the consent of Monica Zammit’s father and enjoyed this system for over seven years.
Victor Calleja complained that the owners of the overlying tenement disconnected their water supply on March 12, 2007.
Faced with this situation, the Callejas filed an actio spolii within two months from the alleged act of spoliation. They asked the court:
• To declare the act of defendants to be illegal and abusive, and that it constituted an act of spoliation in terms of law; and
• To condemn defendants to reintegrate their rights and to restore their water connection with their tank on their roof, under the diction of a court- appointed architect.
In case defendants failed to comply, they requested authorisation to carry out the necessary works under the supervision of an architect appointed by the court in terms of article 791 of chapter 12.
In reply, defendants contested the legal proceedings against them. They maintained that the Calleja claims were unfounded. They also denied committing an act of spoliation.
The court noted that three elements had to be proven in an actio spolii:
• the fact of possession;
• the act of spoliation; and
• legal action within two months.
The court’s considerations in an action against an act of spoliation were limited to provide a quick remedy, to prevent persons from taking the law into their hands and to order the restoration to the state of fact prior to the act of spoliation.
Defendants, on the other side, maintained that the Callejas’ water tank was only accepted on their roof on tolerance and on a temporary basis. They argued that they never acquired any real or personal rights.
It was stated that the Callejas’ tank was in their possession and there was no agreement in writing whereby they were entitled to keep their tank on their roof.
On October 9, 2012, the First Hall of the Civil Court rejected the Callejas’ claims. It noted that they kept their tank on defendants’ roof, on tolerance and for a temporary basis. A person who ‘possessed’ a thing by a simple act of tolerance was not entitled to an actio spolii, pointed out the court – re: Cortis v Sammut dated April 24, 1947.
In Dean v Abela, dated June 30, 2004, the Court of Appeal held that possession on tolerance did not merit protection. In Aquilina et v Briffa et dated May 25, 2007, the court held acts of tolerance arose out of good neighbour relations, in respect of which there was no legal entitlement: “nei rapport di buon vicinato in grazia dei qual si permetta o si tollera che altrui faccia sulla cosa che gli appartiene cio che non avrebbe diritto alcuno di farvi”.
The court’s considerations in an action against an act of spoliation were limited to provide a quick remedy, to prevent persons from taking the law into their hands and to order the restoration to the state of fact prior to the act of spoliation
If a thing was held on tolerance, it could be freely withdrawn.
The First Court dismissed the Callejas’ requests, on the basis that an important element was missing in the circumstances. The fact that the tenements were adjacent and that defendants’ property was not overlying, was a clear indication that their tank was kept on tolerance, said the court. In this respect, the court of First Instance accepted the Zammit’s and Schembri’s defence.
Aggrieved by the decision of the First Court, the Callejas entered an appeal, calling for its revocation. They submitted that the First Court failed to appreciate that there was an agreement between them and Monica Zammit’s father. They reiterated that they had possession and that their possession was disturbed.
The First Court incorrectly said that the tenements were next to each other but not overlying, pointed Victor Calleja. In addition, the decision of the First Court could give rise to a dangerous precedent where a person who owned the air space could remove water tanks belonging to third parties, in absence of a written agreement. They maintained that possession which was based on mere tolerance deserved the protection of the law. No person should be allowed to take arbitrary action and do what he pleased.
The defendants, on the other side, defended the decision of the First Court, which they said, should be confirmed. The Court of Appeal should not disturb the discretion of the First Court, save for serious and grave reasons. They submitted that Calleja did not have possession and they could not exercise an actio spolii as an important element was missing. Their water tank was in fact in possession of the owners of No.1, Parish Street, Santa Venera – Maria Concetta Schembri, Monica Zammit and Maria Schembri who had not been sued.
Tolerance: Calleja maintained that any type of possession merited protection, including material possession and possession di fatto. They put forward the argument that mere tolerance was regulated by law. They said that even if their tank was placed on defendants’ roof on tolerance, no person should be allowed to take the law into his hands and do what he pleased. This would amount to a molestation of a state of fact and to spoliation.
Reference was made to Laurent’s Principii di Diritto Civile Vol XXII, paragraph 297: “Colui che gode per mera tolleranza non ha nessun titolo, salvo un consenso del proprietario che questi puo ritirare da un istante all’altro.”
It was a principle widely acknowledged that act of pure tolerance and acts of courtesy did not give rise to damages against the person who gave such concession: “It-tolleranza ma tattribwixxi ebda dritt lill-parti waħda; u ebda obbligu konsegwenti u korrispettiv lill-parti l-oħra… u min igawdi minnha ma jkunx qed igawdi bi dritt, għaliex in-natura tagħha ma taqbilx mar-rabta legali li tnissel magħha n-necessita’ ta’ l-adempiment”. (Acts of tolerance did not create legal obligations.)
If something was enjoyed on tolerance, such did not qualify as possession, which was one of the three elements of an actio spolii. Tolerance could not serve as a basis of an actio spolii, noted the court and once defendants alleged that the Callejas’ tank was on the roof on tolerance, the First Court had a duty to consider this point.
Tolerance v possession: The court said that a person who enjoyed a thing was presumed to have possession and it was the person contesting who had to prove that such other person did not have possession and enjoyed the thing on tolerance: “It-tolleranza m’għandhiex tigi preżunta u għandha għalhekk tiġi pruvata almenu prima facie (kollez Vol XXXVI p.l, p.292) u l-piż ta’ din il-prova jinkombi fuq min jinvoka t-tolleranza (kollez Vol. XLIV p.II, p.608).”
There were various reasons to explain ‘tolerance friendship, familiarity and good neighbour relations: Vol. XL PI pg. 534. A long period of enjoyment of a thing was not always proof against ‘tolerance’ but it could be an indication that it was more than just tolerance.
The court felt that, in this case, defendants did not prove, even prima facie, that the Callejas’ tank was kept on tolerance. They did not prove that Monica Zammit’s father had accepted Callejas’ tank on the roof on condition that they were free to remove it when they pleased.
In addition, the long period of time during which the Callejas kept their tank on their roof indicated that it was not simply on tolerance. Although acts of tolerance were common among neighbours, this did not mean that every act permitted by a neighbour was done on the basis of tolerance.
The problem which the Callejas wished to solve by placing their water tank on their roof was not a temporary measure and it was unlikely that it was a quick-fix solution. As rightly stated by Victor Calleja, the court said that defendants’ property was directly above their tenement.
It also resulted that the Callejas’ connection with their water tank was disrupted by an act of defendants, without their consent and authorisation, and that legal action was taken within two months from the alleged act of spoliation.
For these reasons, on February 11, 2014, the Court of Appeal gave judgment by revoking the decision of the First Court, and by accepting the Callejas’ requests. If they were not reconnected with their water tank within 15 days, the court authorised the Callejas to carry out all necessary works under the supervision of an architect.
Dr Karl Grech Orr is a partner at Ganado Advocates.