This case concerned a request to the Court to define the boundaries between two properties. The plaintiff was the owner of a maisonette in Qawra, limits of Saint Paul’s Bay situated three storeys above street level above another property owned by defendants. The garage owned by plaintiffs was located below defendants’ property. The properties concerned were built by the same owner in such a manner that they all enjoyed the benefit of servitudes necessary to ensure that all necessary facilities were accessible.

The case involved a dispute between the plaintiff and defendants regarding the access that plaintiff or anyone else occupying his property could have to install necessary commodities in accordance with modern technology.

The Court was hence requested to:

•define the boundaries of both properties in question.

•determine which parts of the properties were, by law, accessible by the parties so as to allow the exercise of their respective rights.

The Court referred to the judgement Mangon et vs Aquilina et (2005) in which it was stated that in cases of this nature it is not the rights of the properties being discussed. Rather, this kind of action strives to exclude any uncertainties in relation to the demarcation of boundaries between properties hence transforming a factual situation into a legal one. The Court further stated that this type of action which essentially sought to ascertain the very extent of each property differed from the Actio Rei Vindicatoria which essentially involves a contestation regarding a title over a particular property.

The Court developed further by claiming that as evolved from Roman Law, in a case such as the one under discussion, the location of marche di confine would constitute conclusive evidence.

According to the Court and as stated in the case Gauci vs Testaferrata Bonici et (1954), an action for delimitation is not even necessary when something reveals with certainty the boundaries in question.

The court took into consideration the fact that plaintiff never submitted his contract of sale. Admittedly, the titles over the properties of both plaintiff and defendants were never contested by either of the parties. Hence, there was agreement that they were the owners of the properties under examination.

In cases like this the Court may rely on technical experts, however, in accordance with Article 681 of the Code of Organisation and Civil Procedure, “The court is not bound to adopt the report of the referees against its own conviction.” However, the Court may not refuse to adopt such report capriciously as stated in a series of cases such as Cauchi vs Mercieca (1999), Saliba vs Farrugia (2000) and Calleja nominee vs Mifsud (2001). In the case Bugeja vs Muscat et (1967), the Court stated that such reports may not be merely discarded unless it is clear that they are unreasonable in the light of the circumstances in question.

The court stated that it was clear that the action was made subsequent to works carried out by the defendant. The two properties were built in such a way that they were facing each other from the sides.

The expert’s report declared that essentially defendants had taken over an area which was originally common property of all parties. Hence, plaintiff had a right to build a dividing wall to obtain half of what he owned. The court hence deemed it necessary to conduct this division so as to allow plaintiff the enjoyment of the space in question as well as the comfort of entry enjoyed by defendants.

Plaintiff further requested the court to clearly outline the servitudes attributable to each property. However, since the plaintiff failed to present the court with his contract of sale by which he had acquired the property in question, the same Court stated that it could only define the servitudes arising by Law.

The court hence rejected the pleas of the defendant and upheld the plaintiff’s claim allowing for the division of the property that was once held in common. The court ordered that a dividing wall be erected in such a manner that the parties have an equal share of the property. The court abstained from dealing with the plaintiff’s second claim in respect of servitudes for the reasons described above.

This judgement may be the subject of an appeal.