A tenant cannot prescribe a servitude for a rented flat

The Court of Appeal, composed of Chief Justice Mark Chetcuti, Judge Robert G. Mangion and Judge Simone Grech, decided M.M. vs G.A. on 23 June 2026. A garage owner in Birgu had sued the tenants of the flat partly above his garage, and the flat's owner, to close two windows and remove drains, pipes and a flushing outlet that discharged over his airspace.

The court held that tenants who themselves opened the apertures cannot have acquired a servitude by thirty years' prescription for the flat they rent, and dismissed their appeal.

The facts

M.M. acquired the garage, its front garden and a plot of land behind it by a deed of donation from his mother on 22 September 2020. The tenants, G.A. and his wife, have rented the flat above since before 1968, first from the grandparents common to M.M. and the flat's present owner, then from her mother, and now from her; she testified that neither she nor her mother had ever had possession of it.

Where the two windows now stand there was once a yard, which the tenants roofed over and from which they opened the windows and led drains, pipes and air-conditioning pipes into the airspace above the garage. Lawyers' letters went unanswered.

The First Hall of the Civil Court, on 15 December 2025, rejected the pleas of the tenants and of the owner and ordered them jointly to close the windows and remove the services within a year, failing which M.M. could do the works at their expense. Only the tenants appealed.

What the court held

The action is the actio negatoria servitutis. The owner proves his title and an act of disturbance; the burden then passes to the defendant to prove the servitude.

The tenants had pleaded that the apertures had existed for more than thirty-five years and had become servitudes by prescription under articles 457(b) and 462(1) of the Civil Code, and on appeal argued that article 465, on which the first court relied, protects only the owner of a servient tenement and says nothing against a tenant winning a servitude for the property he occupies.

The court disagreed. Article 457(b) allows a continuous and apparent servitude to arise by prescription only "jekk il-fond li fuqu jiġu eżerċitati jista' jinkiseb bil-preskrizzjoni" (if the tenement over which it is exercised can be acquired by prescription), and article 465 provides that no servitude which a lessee has allowed to be exercised, without a pre-existing title, prejudices the owner however long it has been exercised.

Following a Court of Appeal judgment of 5 October 2001, the court held that "servitù kontinwa u li tidher setgħet biss tkun krejata mis-sid tal-fond 'dominanti' u mhux mill-inkwilini tal-istess fond 'dominanti'" (a continuous and apparent servitude could only be created by the owner of the 'dominant' tenement and not by the tenants of that 'dominant' tenement). A tenant's right is personal.

He is a mere detentor, has no animus domini, and holds no real right that time could ripen into a servitude. It was not contested that the works were done more than thirty years before the suit, but the tenant's own affidavit confirmed that she and her husband had made them, the owner said she had never possessed the flat, and no evidence showed that any owner had created the servitude.

Qua tenants, the appellants lacked the possession needed to count the works as their own.

The second ground, that long tolerance had at least created a personal obligation letting the tenants keep the windows while they stayed, was raised for the first time on appeal. Applying a Court of Appeal judgment of 18 January 2024, the court refused to consider an argument noviter deductus: it was not put to the first court, forms no part of the judgment appealed, and would deny the parties two instances.

The appeal was dismissed with costs, the one-year term for the works now running from the date of this judgment.

Why it matters

When a servitude by prescription is pleaded, ask who did the act. If a tenant opened the windows or laid the pipes, article 465 and this line of cases answer the plea whatever the years elapsed, and the tenant's landlord gains nothing from the tenant's acts. Plead any personal-obligation alternative at first instance; the Court of Appeal will not hear it new.

Where it sits

Servitudes are real rights and arise only in the three ways article 457 lists: by title in a public deed (article 458), by thirty years' prescription (article 462), or by the destination of the owner of two tenements. Acts of mere tolerance never found possession, and a lessee holds a personal right that cannot burden or benefit a tenement.

The judgment names, besides the Court of Appeal judgment of 5 October 2001, the following: First Hall, 30 June 2003; First Hall, 17 March 2005; First Hall, 31 May 2018; Court of Appeal, 29 October 1999; one case decided by the First Hall on 11 March 2003 and by the Court of Appeal on 29 April 2008; and, on new arguments on appeal, Brittania Shipping International Limited vs Triva Shipping Company Limited, Court of Appeal, 31 May 2023.

Source

Court of Appeal (Superior Jurisdiction), Appeal 226/2021/1, 23 June 2026: 226/2021/1