Deed that excludes a roof gives up title won by prescription
The Court of Appeal found that a family had acquired a disputed roof by 30-year prescription, but held that a later donation deed covering only part of the airspace renounced it. It matters to anyone relying on usucapio over a roof or airspace.
On 13 January 2026, the Court of Appeal dismissed an appeal by a man who claimed a roof lying above his neighbours' bedroom. The court found that his family had possessed the roof as owners for more than 30 years. It held, however, that his mother gave up that prescription when she donated the house to him by a deed that included only part of its airspace.
The facts
Z.F. vs Z.K. concerns two adjoining houses. The plaintiff's house has an internal staircase leading to a roof, part of which lies above a room in the defendants' house. His grandfather bought the house in 1960, and his mother donated it to him in 2018.
The defendants bought the neighbouring house in 2019, and a corrective deed later that year included the disputed roof in their purchase. They obtained planning permission to demolish that part of the roof and build a washroom. The plaintiff obtained a warrant of prohibitory injunction and sued, asking to be declared owner of the roof.
The First Hall of the Civil Court rejected his claims on 17 October 2024, and he appealed. Chief Justice Mark Chetcuti, Mr Justice Robert G. Mangion and Madam Justice Simone Grech heard the appeal.
What the court held
The court first corrected the First Hall on the burden of proof. In a revindicatory action, the plaintiff must prove an original title, even where the defendant pleads a title of his own. A contract, however clear, is only a derivative title.
The court then held that this case was not a revindicatory action. The roof was in the plaintiff's possession, and he sought a declaration, not the eviction of the defendants. In that kind of action a derivative title is enough, though the plaintiff may also prove an original one.
The 1960 contract did not give him a derivative title. It described the house as lying partly under and partly over property of others, but no plan was attached to it. The court could not conclude with certainty that the disputed roof was part of what was sold.
On prescription, the court weighed two versions. The sellers of the neighbouring house testified that the plaintiff's family only crossed the roof, with permission, to reach another roof. Neighbours testified that the family had hung washing on the disputed part for decades.
The court held that tolerance is not presumed, and the party who pleads it must prove it. It found that the sellers had not proved it. A photograph showed the plaintiff's grandmother hanging washing there when she was still young, and the court concluded that his predecessors had possessed the roof as owners for over 30 years without opposition.
That finding did not save the appeal. The 2018 donation described the house as including “parti mill-arja tagħha stante li parti minnha hija sottopost għal beni ta’ terzi” (part of its airspace, since part of it lies beneath property of third parties). The court read the phrase as excluding the airspace over the part of the house beneath the neighbours' room.
The court held that the description “neċessarjament ifisser li l-bejt in kwistjoni ma kienx qiegħed jiġi kkunsidrat bħala proprjetà tad-donatriċi” (necessarily means that the roof in question was not being treated as the donor's property). Under article 2119(2) of the Civil Code (Chapter 16 of the Laws of Malta), a tacit renunciation follows from a fact that implies abandonment of the right acquired.
The plaintiff argued that the notary made a slip, and that his own conduct, including the injunction and the lawsuit, was incompatible with renunciation. The notary shed no light on the wording when she testified. The court held that his conduct was irrelevant, because any renunciation was made by his mother as donor, not by him.
The court dismissed the appeal and ordered the plaintiff to pay the costs of both instances. It refused the defendants' request for double costs.
Why it matters
Prescription already acquired over part of a property can be lost through the way a later deed describes that property. Before a donation or sale, the description of the property and its airspace should match what the family has possessed. Once the transferor signs, the wording can bind the transferee, even if it began as a drafting slip.
Where it sits
The case sits at the line between the revindicatory action, with its probatio diabolica of original title, and the declaratory action of a possessor, sometimes called the actio publiciana. It also applies usucapio under articles 2107 and 2143 and the rule that renunciation of prescription must be clear.
On original title in a revindicatory action, the court relied on its own judgments of 23 June 2025, 12 July 2023, 28 April 2021, 29 October 2018, 27 September 2019 and 27 March 2020. On a possessor's declaratory action, it applied its judgment of 30 June 2021. On tolerance, it relied on its judgment of 11 February 2012.
On renunciation, the First Hall judgment under appeal cited the First Hall (10 October 1950) and the Court of Appeal (18 March 1977). Those judgments read a tacit renunciation restrictively, so that the facts must allow no other conclusion.
Source
Court of Appeal (Superior Jurisdiction), 699/2020/1, 13 January 2026.