Years of neighbours' silence create no servitude

The Court of Appeal, composed of Chief Justice Mark Chetcuti, Judge Christian Falzon Scerri and Judge Josette Demicoli, decided C.N. vs C.C. on 13 July 2026. The owner of a second-floor flat in Birkirkara had opened four windows onto the internal yard of the ground-floor maisonette and a balcony over its back yard, fixed air-conditioning compressors to the wall above both, and connected new drainpipes to the maisonette's drainage.

The court held that none of this rested on a servitude, that years of silence by the neighbours created neither consent nor a personal right, and that the ten-year prescription of article 2140 cannot found a servitude, which needs thirty years under article 462.

The facts

C.N. bought the maisonette on 18 April 2000, "excluding its airspace", with the drainage in common with the property above; in 2014 he transferred a half share to his wife by a deed reciting that the maisonette was subject to the servitudes inherent in its position within a block. C.C. had bought the overlying mezzanine in 1991 with a servitude of apertures and rainwater drop towards the property below and common drainage.

He transferred it to his mother in 2002, obtained permit PA/1128/06 in 2006 to build a flat and a penthouse above it, carried out the works between 2007 and 2009, and bought the second-floor flat from his mother on 20 April 2007, "without its airspace". C.N. and his wife sued in June 2023 by the actio negatoria.

The First Hall of the Civil Court, on 10 March 2026, declared that the windows, balcony, compressors and pipes existed without any right of servitude, ordered their closure and removal within three months of the judgment becoming res judicata, and authorised the plaintiffs to do the works at C.C.'s expense.

What the court held

C.C. appealed on five grounds and, with leave under article 2112, added a plea under article 2140. All failed.

Consent and acquiescence. Even express consent not cast in a public deed does not create a servitude (Court of Appeal, 29 October 2004), and the court repeated that "Is-silenzju u l-passività waħedhom mhumiex biżżejjed" (silence and passivity alone are not enough). The window said to pre-date 1994 was shown on the 1994 permit drawings as proposed, not existing, so no thirty years had run.

Personal obligation. The court adopted the first court's analysis of the line between a personal bond and a servitude: a benefit of light, air and view that attaches to the flat and is permanent points to a praedial servitude, not to a temporary right between two persons (Court of Appeal, 14 October 2025). Such a right needs a public deed under article 458.

The 2014 clause. "Subject to the active and passive servitudes inherent in its physical position" is standard wording that identifies no servitude and no dominant tenement, so it neither recognises nor constitutes anything; servitudes are construed strictly and doubt favours the servient tenement (In-Sight Investments Limited vs Budget Services Limited, Court of Appeal, 6 February 2025; Court of Appeal, 25 May 2023).

Drainage. Article 104(2) of the Code of Police Laws obliges the lower owner to let pipes pass to reach the public drain; it gives no right to connect to the private system the maisonette shares with the mezzanine alone, and the mezzanine could not extend that community to new floors without the co-owner's consent (article 460; Court of Appeal, 26 October 2022).

Airspace. Even where the airspace above a yard belongs to others, the wall remains a party wall and article 425 forbids openings in it without consent (Court of Appeal, 30 April 2026 and 12 February 2018).

Prescription. "L-eċċezzjoni tal-preskrizzjoni deċennali taħt l-Artikolu 2140 tal-Kodiċi Ċivili ma tistax tiġi invokata għall-ksib ta' servitù" (the plea of ten-year prescription under article 2140 of the Civil Code cannot be invoked for the acquisition of a servitude).

Article 2116 makes the general title on prescription yield wherever the Code provides otherwise, and article 462(1) provides that a servitude is acquired by prescription only by possession of not less than thirty years (Court of Appeal, 5 October 2001 and 27 April 2023).

The appeal was dismissed with costs.

Why it matters

Do not plead article 2140 for a servitude; the only prescription is thirty years. Do not treat the boilerplate "servitujiet attivi u passivi" clause as a title; it names no dominant tenement. And article 104(2) of Chapter 10 lets a new floor reach the public drain, not tap into the neighbours' existing system.

Where it sits

The case runs through the whole map of praedial servitudes: the negatoria action brought by owner against owner; the three modes of creation in article 457 and the public-deed requirement of article 458; strict construction under article 476; the legal servitude of article 104 of the Code of Police Laws; and the rule that co-owners create a servitude only together (article 460).

Its authorities also include judgments of the Court of Appeal of 12 July 2023, 5 October 2023 and 25 February 2021.

Source

Court of Appeal (Superior Jurisdiction), Appeal 582/2023/1, 13 July 2026: 582/2023/1