The availability of the actio manutentionis to an owner of immovable property

The First Hall Civil Court, presided by Mr Justice Lawrence Mintoff on 3 October 2018, in the case Salvino Lungaro vs Paul Lungaro, upheld the distinction between the actions available to a possessor of property, such as the actio manutentionis, and the wider myriad of actions available to a person who both owns and possesses the property in question, such as the action negatoria.

The facts of the case were as follows:

The plaintiff was the owner of a garage connected at the back to an internal courtyard which was owned by Paul Lungaro, the defendant. The latter built a flight of concrete steps in his courtyard, together with a metal railing which he claimed was intended, inter alia, to prevent the plaintiff from accessing his property. Salvino Lungaro then proceeded to file a possessory action, the actio manutentionis, claiming that the structures in question prevented him from opening the window, thereby cutting off his property’s source of light and ventilation. The plaintiff requested the Court to declare that he had been molested in his rights of enjoyment over his property, and to order the defendant to remove the concrete steps within a judicially-established timeframe.

The plaintiff’s claim was based on Article 534 of the Civil Code, Chapter 16 of the Laws of Malta. Article 534 of the Civil Code states as follows,

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.

In delivering judgment, the Court made reference to local jurisprudence developed in response to a set of circumstances similar to those it was faced with, whereby possessory actions were instituted to protect the plaintiff’s rights. In Maria Mifsud Bonnici et vs Victor Attard et, delivered by the Court of Appeal (Superior Jurisdiction) on 30 April 2009, the Court referred to the Italian jurist Ricci regarding whether the actio manutentionis can be brought for the purpose of restitution of the property to the plaintiff, as happens in cases involving spoliation. Ricci states as follows,

With the actio manutentionis, the conservation or maintenance of the status quo of the possessor is requested; and because the current state of affairs cannot be maintained unless the disturbance ceases, it is therefore implicit that the actio manutentionis inhibits, as a consequence, the perpetrator from persisting in any disturbance he is causing [...].

In the same judgment, the Court cited the earlier 1991 decision in Michele Calleja vs Emanuela Cassar et, delivered by the First Hall Civil Court, whereby the Court upheld the plaintiff’s claim, and ordered the defendant to carry out the necessary works for the purposes of restoring the passage to its original state. The Court considered that,

It is evident that, even in a claim as advanced by the plaintiff in these proceedings, the request for reintegration, is not only permissible, but as Ricci himself stated, sometimes indispensable for the plaintiff to be reinstated in the original enjoyment of his property.

It has been judicially established that the actio manutentionis can be used by any person who has been molested in the enjoyment of his property which property is in his possession, to request reintegration and removal of the molesting factor.

However, the Court took the opportunity to observe that the actio manutentionis was not particularly suited to the plaintiff’s claim in this case. This was due to the fact that in this case plaintiff was not the mere possessor of the garage, but was also the owner of the immovable property in question. Maltese Courts have repeatedly made a distinction between a ‘molestation in fact’ and a ‘molestation in right’. While any possessor may raise the actio manutentionis to protect his rights of possession from any molestation in fact, the owner of immovable property who suffers molestation in his rights, has at his disposal a number of other actions, most commonly the actio negatoria. This is particularly true when molestation consists in the creation of servitudes and other rights claimed by third parties over the property.

However, no pleas were raised by the defendant concerning the suitability of otherwise of the actio manutentionis to the present set of circumstances. In view of the absence of any such pleas, the Court made reference to a 2004 judgment delivered by the Court of Appeal (Inferior Jurisdiction) in the name of Design Elements Limited vs Michael Camilleri pro et noe, whereby it was declared that,

Where a head of action emerges from the proceedings, which head of action is different to that referred to in the writ of claims, the Court may, at its discretion, declare that the heads of action are sufficiently and logically equivalent to prevent the nullity of the action brought. This is possible in order to give effect to the spirit of the law, evident in numerous judgments, which avoids the multiplication and dilution of law and discourages rigid formalism which severely undermines and disregards the administration of justice.

The Court therefore applied the principle of equivalence to the current proceedings as the relevant facts on which the plaintiff based his claim were sufficiently laid out in his writ of claims. Therefore, the owner of immovable property may make use of actions intended for use by a person who has mere possession, rather than ownership, of the property.

The Court outlined the four elements comprising the actio manutentionis:

• Possession of the immovable property or of the universality of movable property;

• Molestation in possession of such property;

• The action must be instituted within a year from when molestation took place;

• The plaintiff must not have usurped such possession by violence or clandestinely from the defendant.

In this case, the plaintiff was the owner of, and enjoyed full possession, of the garage in question, while the internal courtyard was exclusively the property of the defendant. The Court opined that it did not deem the plaintiff to have been molested in the enjoyment of his property insofar as the intake of light into the garage was concerned. Rather, the molestation suffered resulted from the fact that he could no longer open the window at the back of his garage, on account of the metal railing affixed to the outer wall by the defendant. The flight of concrete steps built in the internal courtyard was not tantamount to molestation, for the plaintiff neither owned nor possessed the said courtyard, which had been in the defendant’s possession for approximately thirty-seven years.

In view of the above, the Court declared that the external handrail which prevents the plaintiff from opening the window should be removed, as it was causing serious prejudice to the ventilation of the garage in question. It ordered the defendant to remove the handrail within a month’s time from the delivery of judgment, and in the defendant’s default, authorised the plaintiff to carry out the necessary works at the defendant’s expense.