Spoliation is the term used to refer to someone being deprived of the use of something that is his/her own. The Civil Code defines spoliation, or spoll, as is more commonly known, as when a person is “...by violence or clandestinely despoiled of the possession, of whatever kind, or of the detention of a movable or an immovable thing...”
Therefore, anything which, by its nature, can be possessed can be the subject of spoliation. This gives the meaning of spoliation a wide meaning through its choice of words “of whatever kind”. These can be of any form as long as they can be possessed, whether they are movables – that is, items that can be moved, such as furniture – or immovables – items that cannot be moved, say a house.
The keywords in this definition are “violence” and “clandestinely”. This means that, in the action of spoliation, such spoliation should be either committed with violence or done “under cover” and, thus, the person so despoiled only “discovered” that s/he has in fact been despoiled.
At times, spoliation can be very straightforward but it can also take on an abstract dimension. The former commonly happens when a person decides, without any legal right, to dispossess a person of that person’s property, especially in, but not limited to, separation proceedings. For instance, consider a couple going through separation and there is no court decree pendente lite, ruling who should live in the house.
Therefore, legally speaking, both spouses have a right to live in the said matrimonial home. At times this can be a strained relationship due to the ongoing separation. At other times one of the spouses takes the matter into his/her hands when that spouse decides that s/he had had enough of the other spouse and, thus, decides to kick the other spouse out of the house; either by literally locking him/her out of the house or by changing the lock or even by putting a metal bar across the door to physically prevent entry. This is against the law and no one has the right to keep the other spouse from having access to and making use of the house.
Another situation is when one spouse actually has a court decree stating that s/he should live in the matrimonial house but, in reality, the other spouse is living there.
These are all forms of the deprivation of the use of one’s property.
With regard to abstract forms of spoliation, one example is the deprivation of privacy when one decides to have a window overlooking the neighbour’s garden. This is spoliation because the neighbour is deprived of the right to use the garden in full privacy.
In all cases, action can be instituted so that the person dispossessed of such thing can regain its physical possession – that is, an action instituted so that there can be restoration of the object to its former condition and the object dispossessed returned to the party so dispossessed.
An action of spoliation has a time limit in which it must be instituted and, in this case, it is of two months from the day on which the spoliation occurred.
In cases of spoliation, the term “abusively” is invariably used. This is because spoliation is, in fact, the wrongful use of something – that is in our Maltese cases of spoliation. Something that belongs to A is wrongly possessed and used by B.
The actio spolii, or action for spoliation, needs to have three main elements for such an action to subsist. The first one obviously is the material possession, that is, one cannot claim spoliation if one did not originally have the possession of it.
In other words, the mere use of such property is not enough – there must be possession. Possession can be in good faith or in bad faith but, as long as there is possession, the action of spoliation will subsist. However, mere usage of such property is not enough and there cannot be an action of spoliation based simply on usage and not possession.
The second element is that there must be spoliation – that is one has in fact been despoiled of the possession of the property.
And the third element is the time limit of two months – one cannot institute an action of spoliation if the two months have lapsed.
Therefore, the action of spoliation protects the person who has been so despoiled from the illegal action of the other person irrelevant of whether such person believes it to be his/her right or not. No one can take the law into his/her own hands, hence, good sense dictates one to take the matter to court for justice to be done, otherwise s/he would eventually be in the wrong.
Dr Mangion is a lawyer and a published author with a special interest in family and child law.