Possession is a very important term in property litigation, for it is a legal medium that scrutinises the title of ownership. It is a general principle of law that he who possesses is presumed to be the owner of the thing held by him – be it an immovable or movable property.

Presumptions at law are very peculiar – a presumption is an establishment of a fact that is automatic and which may be made without the aid of proof. In many cases, presumptions are rebuttable, meaning they may be contested by means of evidence to the contrary. But presumptions hold an important role at law, for they set a fixed starting point from which one can depart.

Article 525(1) of the Civil Code presumes that a person possessing a thing is deemed to possess it on his own behalf and by virtue of a right of ownership. This legal institute and presumption exists independently of the formal legal titles. That is, the starting point of the law is that someone who possesses something does not possess it on behalf of someone else. Likewise, the law presumes that where there is possession there is ownership.

But these are both rebuttable presumptions, because there may be circumstances where possession – the phy­sical detention of a thing – exists independently of any title, including ownership title. So one can put forward evidence that seeks to contradict these presumptions.

For instance, there may be cases where a person holds a land without having any title deed in his name. Such possessor, by law (and in terms of article 525(1)), is initially presumed to hold the right of ownership – just as if he has acquired the land by virtue of a notarial deed. Once again, this is a rebuttable presumption.

Indeed, it is recognised at law that a possessor who has held a land (without having a contract in his name) for a period of 30 years (and if the appropriate legal requisites are satisfied) may acquire such land by virtue of the acquisitive prescription (in Common Law terms known as ‘adverse possession’). In common parlance, this legal institute is commonly (and perhaps imprecisely) referred to as “it-trobbija tal-ġust”.

This is essentially the reason why possession is regarded to be a stronghold in favour of the possessor, especially in cases where possession and title deeds compete, for possession may not only demonstrate presumed ownership, but it can actually eventually lead to proper ownership through acquisitive prescription. In Malta, ownership through prescription is not as rarely found as one would first think.

When title and possession exist simultaneously over the same thing, in connection to the same person (the owner), there is really no problem, for these two legal statuses complement one another. In short, having both (possession and ownership title) means holding absolute ownership – the most desired form of ownership – the most qualified form of title.

The issues arise when this legal presumption in favour of possession is sought to be challenged by evidence that one is holding a property not in his own name but on behalf of another. The quandary is most interesting when the two elements (possession and ownership) are fragmented in a way that the court has to dig deep and decide who the actual owner is.

For one to acquire a property through acquisitive prescription, he has to have held the thing as though it belongs to him

This was the matter finally decided by the Court of Appeal on July 20 in the case in the names of ‘Kevin Zammit et v Carmel Galea’.

The appellant, a farmer, held in his possession a portion of agricultural land. The farmer was being sued by third parties who claimed to be the owners of this land. They were demanding that the court orders his eviction from the property. The appellant argued that he had held the land for a long time and thus had acquired it through acquisitive prescription.

On the other hand, the claimants claimed that the appellant was occupying their land by virtue of mere sufferance (tolleranza) that was originally granted to him by their father and, as a result, no matter how long he had held the land, it did not become his.

In examining the merits of the case, the court discussed the legal issues surrounding possession in light of ‘acquisi­tive prescription’. Possession is, after all, what triggers the conception of acquisitive prescription – being the elementary ingredient of this legal institute.

The court found that the farmer in question actually ‘knew’ that the property belonged to third parties, although he claimed that he should be considered as having acquired the property under the title of acquisitive prescription. This was problematic, because for someone to acquire a property through acquisitive prescription, they have to have held the thing as though it belongs to them − animus et corpus; corpus possessionis et animus possidendi vel animus domini. The frame of mind of the possessor is key.

The court, however, concluded that despite the fact that the farmer knew that the property was owned by others, since he had held the property with the intention of becoming its owner though acquisitive prescription, this element of prescription was satisfied.

The legal problem for the farmer was something else; if a tenant is found to have held the property through mere sufferance, he will never be able to acquire it, no matter for how long he would have held it.

Such possessors cannot shift to acquisitive prescription, because they hold a bond with the original owners. Mere sufferance is a title that enables its holders to hold the property with the blessing of the original owners. Thus, the owner would still be very much in the picture.

In this case, the court found that the farmer was holding the property under a title of mere sufferance; indeed, the farmer and the owner had originally agreed that the former was to farm the land but return it when the owner requested it back.

For this reason, the court stated that the farmer knew very well that he was holding the land with the consent of the owner (that is, on behalf of the owner) under a title of mere sufferance, and thus acquisitive prescription had never been triggered.

The court thus ordered the farmer to evict from the land in question.

Mary Rose Micallef is a junior associate at Azzopardi, Borg and Abela Advocates.