Our law is built on good order − and the arm of justice is the sole and ultimate adjudicator of disputes between parties. One cannot just presume to have a right and pretend to enforce it arbitrarily without resorting to the courts; the law legislates against those who take matters in their own hands.
The law does not take kindly to vigilantes, which is why it makes the exercise of a pretended right a criminal offence. Rights are given or denied by the courts of justice (or the equivalent boards or tribunals) and not by one’s unilateral idea of what is right or wrong.
All of us have met people who always think they are right, even when they are not. Now imagine for a second if those people could just go seize what they think is theirs, arbitrarily, without verification or limitation. The pretend creditor can just come and take your car, the resentful family member can just run off with part of your rightful inheritance and the squatter can just start occupying the field he has a hunch is his.
If everyone could do that, we would live in chaos.
In the law of lease, one cannot chuck out a tenant without a court’s order, even if one has a thousand reasons for doing so. This prohibition is strict; an owner cannot change the keys to the front door of a property rented without the tenant’s consent, even if the tenant has never paid rent, even if he has broken most of the terms of the lease agreement, and even if he has abandoned the property occupied and become absolutely untraceable. Once again, this is a measure that gives dignity to the administration of justice and avoids dystopian chaos.
Indeed, even when the period of the lease would have expired, one just cannot chuck out the lessee without first obtaining the relative order of the Rent Regulation Board. That would highly likely be a criminal offence under article 85 (1) of the Criminal Code, which states that:
“Whosoever, without intent to steal or to cause any wrongful damage, but only in the exercise of a pretended right, shall, of his own authority, compel another person to pay a debt or to fulfil any obligation whatsoever, or shall disturb the possession of anything enjoyed by another person, or demolish buildings, or divert or take possession of any watercourse, or in any other manner unlawfully interfere with the property of another person, shall, on conviction, be liable to imprisonment for a term from one to three months.”
Indeed, an exercise of a pretended right may also give the ‘victim’ the right to file an action in court for the restoration of the thing taken from him by spoliation. This action is known as the azzjoni ta’ spoll, or simply, spoll.
The law does not take kindly to vigilantes, which is why it makes the exercise of a pretended right a criminal offence
This is what the plaintiff did in the case of ‘David Lauri v Claudette Buttigieg u Joseph Buttigieg’, decided by the Civil Court, First Hall on December 15 (516/2017JVC).
The parties had entered into a contract of lease for a period of 18 months. At one point, the respondents (the landlords) started alleging that the plaintiff (the tenant) had illegally sublet the property, breaching the terms of the contract between them. For this reason, the respondents visited the property and changed the locks of the front door, impeding the plaintiff from entering. The respondents did not deny changing the locks but stated that they had the right to do that, since the breach of the terms of the contract of lease brought about the termination of the agreement ipso jure. In stating so, they quoted article 1569 (1) of the Civil Code, which states that: “A contract of letting and hiring shall also be dissolved ipso jure upon the fulfilment of a condition under which the dissolution of the contract was expressly covenanted...”
Ipso jure is an abstruse term; literally, it means ‘by mere operation of law’, but its application is less literate than that.
In its decision, the court explained the importance of the action of spoliation; it is a tool of social utility that impedes a citizen from taking the law in his own hands, on what he unilaterally believes are his rights. It is a measure of public order that maintains public peace.
It seldom mattered that the tenant could perhaps have been in breach of the lease agreement. It seldom mattered that maybe, the plaintiff could have been right. That is a matter that always has to be decided by the competent court and not alone by the person making that claim. It seldom matters that the lease agreement would provide for a resolutive condition, that is for the termination ipso jure of the lease on the occurrence of one or more events.
It must be added that this is true, notwithstanding if in the agreement there is a clause stating that the landlord be authorised by the tenant to change the locks of the premises without needing to seek authorisation from the Rent Regulation Board on the occurrence of a certain event. A private agreement may not give one power to break the law. This is the kind of behaviour the law wants to discourage, thus providing the remedy of the azzjoni ta’ spoll.
Therefore, in this case, the respondents were wrong to take the law in their own hands and the plaintiff was right to complain about their behaviour. The court, however, noted that the case had taken long to be decided, more than three years, when the lease subject to the case was of a mere one-year-and-a-half.
This created a problematic situation, as the plaintiff had originally demanded an order for the return of the property from which he was dispossessed. The original period of the lease had expired while the case was being heard and, as a result, the court could not return the property to a tenant (the plaintiff) who was no longer such. But the court did declare the respondents guilty of wrongful spoliation and ordered them to pay the costs of the case.
Carlos Bugeja is a partner at Azzopardi, Borg & Abela Advocates.