It is not rare for two people to each own a tenement (often a parcel of land) next to each other, not knowing exactly where one’s ends and the other’s begins. With buildings, this is not as big of a problem, for they have walls. But with parcels of lands, the parameter of lands is usually imprecisely indicated by the position of decade-old trees or old rubble walls, and therefore, the problem of boundaries is much more common. And as the defiled saying goes: for every problem, there is a lawsuit.

This is not just a problem of our time. Since Roman times, there existed an action at law for situations where the boundaries of contiguous estates were uncertain. For many of us, a border is simply the notion of separation between two spaces, but for Ancient Romans, it was much more than that.

It is enough to state that in one of the stories, Rome is said to have been built on a quarrel over boundary; legend has it that when shaping the city, two brothers (Romulus and Remus) took two oxen and dug the ditch that was later to hold the walls that confined the city. On creating this very first boundary, Romulus is said to have uttered the very first concept of legal possession, uttering that “nobody shall go beyond this sacred line”, not even the army. In the ultimate act of insult and mockery, Romulus jumped over the boundary wall. Remus did not quite take it well, getting enraged and punishing his brother with death.

This anecdote says a lot about the frame of thought of Ancient Romans when creating and protecting frontiers. In a way, boundary lines were a geographical representation of pride and power and it, therefore, comes as no surprise that later, when throwing a spade at one’s head was no longer considered as a feasible (and a legally justifiable) solution, the protection of one’s possessions through the establishment of parameters became legally protectable by law, through the action that came to be known as the ‘actio finium regondorum’.

The parties were not in agreement as to the exact parameters between them

Through this action, either party interested in the re-establishment of the boundaries could file an action against the other for that very purpose. This action has not changed much since Roman times, and it found its way to the continental civil codes, including the Maltese Civil Code, chapter 16 of the Laws of Malta.

Today, article 325 states that “every owner may compel his neighbour to fix, at joint expense, by visible and permanent marks, the boundaries of their adjoining tenements”. We still refer to this action as the actio finium regondorum, true to its Roman origin.

In the case of ‘Tamarac Ltd et vs Cutrico Services Ltd’ (first decided by the Civil Court, First Hall, and then finally by the Court of Appeal on January 28, 2021), the plaintiffs requested the court to establish the boundaries between their tenement and that belonging to respondents, and to order the respondents to evict from that part which they were occupying, but which was found not be theirs. The respondents did not object to the request but highlighted the fact that the parties were not in agreement as to the exact parameters between them. For this reason, they filed a counterclaim demanding the same exact thing, vice versa.

In these cases, the first thing that a court does is to appoint a technical expert (normally an architect by profession) who would be able to examine each party’s contract of acquisition, plans attached thereto, official aerial photographs, and other documents in order to determine the exact position of the respective tenements.

The problem in this case was that there were many different opinions, by different architects, so there was no one obvious solution. Indeed, in this case, even the architects nominated by the court disagreed.

During the proceedings before the first court, following the publication of the court expert’s (in the law, he is referred to as ‘referee’) report, one of the parties had filed a request under article 677 of the Code of Organisation and Civil Procedure (chapter 12 of the Laws of Malta), demanding the appointment of additional referees (three in number). The second set of referees disagreed with the first. In its judgment, the first court had opted to implement the report of the additional referees and designate the parameters as suggested by them and put away the conclusions reached by the first referee.

The plaintiffs disagreed and appealed to the Court of Appeal, stating that the first court should not have relied on the report filed by the additional referees, for it contained a number of obvious defects and missing considerations.

The Court of Appeal agreed with the appellants, noticing that the additional referees failed to take account of a number of factors, most particularly of the plan attached to both parties’ contract of acquisition, which albeit defective and not perfectly clear, was very indicative of the parameters between the parties’ respective tenements.

There is nothing in the law that binds the court to accept and implement that most recent report and, therefore, the Court of Appeal chose to abandon the conclusions of the additional referees and instead adopt an earlier report, that is the parameters prepared by a certain Perit Andrew Ellul, which the court felt to have been the most consistent, just, and concrete.

As a result, the first court acceded to the appeal, erased the first judgment and ordered that the parameters are to be considered in the manner established by the architect referred to above.

Since this was a judgment delivered by the Court of Appeal, it is considered to be final and can no longer be appealed.

Carlos Bugeja is a partner at Azzopardi, Borg & Abela Advocates.