The origins of agriculture in Malta are as ancient as man’s presence on these islands; there is indeed ample evidence demonstrating a never dwindling vocation to husbandry and agriculture all throughout our history.

Despite this indigenous dedication, traditionally, private ownership of agricultural land by farmers was somewhat rare. A large part of agricultural land was (and still is) occupied by farmers under a long (and in some cases, perpetual) emphyteutical concession, granted thereto by the government or the Catholic Church. There are also a number of lands leased by the government (or the Joint Office) to private parties under an agricultural lease renewable year after year; what is more commonly known as qbiela.

In medieval times, the term gabillott referred to the ‘receiver of rents’ – a steward appointed by rich landowners to administer lands on their behalf and to collect the qbiela. Today, however, gabillott is what we call that farmer who works fields owned by someone else, that is – an agricultural tenant.

Unsurprisingly, there are a number of legal principles and rules pertaining to the gabillott, which are inapplicable for farmers who own the fields they work. These were the subject in the judgment of the Court of Appeal delivered on September 27, in the names of Raymond Gauci et vs Peter Vella et (856/06/1).

In this case, two farmers occupied neighbouring portions of land, both under a title of agricultural lease (qbiela), owned by the Government of Malta, and administered by the Joint Office. Respondents were the heirs of the original tenants, and a dispute arose when the plaintiffs sought to stop the respondents from passing over their land. The respondent argued among others that they had the right to pass back and forth over the land of their neighbour, like their ancestors before them.

By means of a judgment of the Civil Court, First Hall, the respondents had been ordered not to pass over the plaintiffs’ leased land. The respondents appealed.

Respondents had no protected right to use the land occupied by the plaintiffs, despite the fact that their ancestors did

In deciding the appeal, the Court of Appeal immediately noted that the case before the first court was incorrectly treated as a matter of servitude law.

The concept of ‘servitude’ (sometimes known as ‘easement’) is the legal principle providing for the right to use and/or enter onto the property owned by another without possessing it. It is best typified in the right of way which one landowner may enjoy over the land of another.

In praedial servitudes, we distinguish between what are a dominant tenement and a servient tenement. Essentially, the dominant tenement is the tenement enjoying such servitude, while the servient tenement is the one suffering the servitude.

Servitudes are hence a weight on absolute ownership, for the property owned is burdened by the right of another person, a real right which becomes part and parcel of that property and cannot be alienated freely.

In Civil Law, real right refers to a right that is attached to a thing, rather than a person. It remains part of the property even when that property is sold, for it is a matter intrinsically tied to the property itself, and not to the individuals holding it. Therefore, a tenant cannot grant a servitude on a land which is not his.

However, it is fairly common for different tenants of agricultural lands to establish a modus vivendi, usually through a relationship based on friendship or good neighbourliness. This is acknowledged at law and is a far stronger right than that known as ‘mere tolerance’.

The court stated however that ‘a right of way’ granted by a gabillott does not have the character of a ‘servitude’, for how as long it exists, it does not generate a real right over the property.

Furthermore, if the owner of the lands is the same person (and only the tenants are different), there can be no servitude, even since it is generally stated by law that an easement is extinguished when the dominant and the servient tenements become united in the ownership of one person.

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Therefore, a right of way granted by an agricultural tenant is not a servitude. It merely creates a personal obligation that the owner has to respect provided that it does not hinder his right of ownership. It does not burden the property itself and is not transferable towards third parties.

This does not mean that arrangements made between agricultural tenants are obligation-free or that they can be unilaterally retracted. That would be the case with grants on the basis of ‘mere tolerance’, which are innately titleless grants withdrawable by the grantor at any time and without prior notice. Arrangements made between gabillotti, on the other hand, are legal undertakings recognised by law and enforceable in a court of law. However, they are only personal to the individuals making it and do not extend further.

The fact that the respondents’ ancestors had used the path for a length of time did not create a real right, but if anything, a mere personal obligation appertaining only to that person in favour of whom it is granted. Therefore, the obligation created in favour of the respondents’ ancestors died with them, and was not inherited by the respondents, once the plaintiffs did not wish to extend this favour thereto.

Therefore, the respondents had no protected right to use the land occupied by the plaintiffs, despite the fact that their ancestors did.

For this reason, the Court of Appeal confirmed the judgment of the first court and ordered the respondents not to use the plaintiffs’ land.

Carlos Bugeja is senior associate at Azzopardi, Borg & Abela Advocates.