A house held as owner for 30 years leaves the estate
The First Hall of the Civil Court held that a son who possessed a house his parents built, as its owner, for over 30 years had acquired it by prescription, and divided the rest of the estate. It matters to heirs splitting an inheritance.
On 9 January 2026, the First Hall of the Civil Court held that one of five brothers had become owner of a house his parents built by 30-year prescription, so it was not part of their estate. Madam Justice Audrey Demicoli then divided the rest of the inheritance into five lots of equal value. She ordered one property sold by licitation, a court-run sale, because assigning it to one heir would have needed a heavy cash adjustment.
The facts
A.R. vs A.J. is an actio familiae erciscundae, a claim to divide an inheritance between heirs. The parties are the five children of a couple who each left their estate to the children in equal shares.
Two brothers sued the other three for partition. One defendant argued that the house he had lived in for decades was his and not part of the estate. He relied on two private written declarations from the 1980s, under which he and his wife paid his father for the property. No notarial deed was ever signed.
After the father died, the defendant signed the estate declaration for tax purposes, which listed half of the house among the father's assets. His mother dealt with the declaration and paid all the tax. After the mother died, one of his brothers sent him a lawyer's letter in 2019 asking him to leave the house or regularise his position.
What the court held
The court first held that the declarations could not transfer the house. Under article 1363(1) of the Civil Code (Chapter 16 of the Laws of Malta), a sale of immovable property is void unless it is made by public deed. If the defendant owned the house, it could only be by 30-year prescription.
Article 2143 bars all actions after 30 years, and no one can oppose that prescription for lack of title or good faith. The court read it with article 2107(1), which requires possession that is continuous, uninterrupted, peaceable, open and unequivocal.
The defendant had held the house since at least 1985, more than 30 years before the second parent died. No one else held a key, and his siblings confirmed he had always lived there.
The estate declaration did not interrupt the possession. Relying on a Court of Appeal judgment (30 September 2016), the court held that a waiver of prescription is never presumed and must follow from a clear act. The defendant had left the paperwork to his mother, and after her death he left the house out of his own declaration.
The possession was also peaceable and open. Before 2019, neither the parents nor the siblings took any step to disturb it, and the letter came after the 30 years had run. He paid the ground rent, or ċens, due on the house, and the electricity and water meter was in his name.
On the last element, the court found that he possessed as owner. He and his wife finished and maintained the house at their own cost, and the parents' own declaration described them as “proprjetarji” (owners). Relying on a Court of Appeal judgment (31 May 2013), the court found it unlikely that a person holding by mere tolerance would pay to build a house.
The court concluded that he “akkwista l-fond … bis-saħħa tal-preskrizzjoni akkwiżittiva trentennali” (acquired the property by virtue of the 30-year acquisitive prescription). The house was therefore left out of the estate.
For the partition, the court applied article 496(1), under which no one can be compelled to remain in co-ownership, and article 515, which provides for licitation where property cannot be divided conveniently and without loss. It treated licitation as the exception to division in kind.
The court adopted the valuations of its technical expert, which no party contested. One property was worth about twice the others, so the court ordered that property alone sold by licitation, with the proceeds shared equally. It formed five equal lots from the rest, balanced by cash and equalisation payments.
Under article 503, a co-owner who owns property adjacent to a common immovable may ask for it to be assigned to him on a valuation. The court gave three lots to the brothers whose own property adjoined them and left the other two to be drawn by lot. It split the costs equally.
Why it matters
An heir who has possessed a family property as its owner for 30 years can keep it out of a partition, even without a deed. Signing a tax declaration that lists the property does not, on its own, waive that prescription. Co-heirs who dispute such possession must act before the 30 years run, because a letter sent afterwards changes nothing.
Where it sits
The case applies the 30-year acquisitive prescription, usucapio, which the Civil Code treats as a mode of acquiring ownership. Unlike the 10-year prescription of article 2140, it needs no title and no good faith. It does need possession in the full sense, corpus and animus domini, not mere detention on behalf of another.
On the burden of proof, the court relied on the First Hall (13 February 2014 and 28 March 2003) and the Court of Appeal (Superior Jurisdiction) (22 October 2024). The person pleading prescription must prove possession for the whole 30 years.
On partition and licitation, it drew on the First Hall (27 October 2011, 25 September 2003 and 9 December 2021) and the Court of Appeal (Superior Jurisdiction) (18 February 2016).
Source
First Hall of the Civil Court, 447/2021, 9 January 2026.