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  • Dr Carlos Bugeja

Owning and Disposing

by Dr Carlos Bugeja - Partner



Ownership is sacred at law.


Property rights can be tangible, such as personal property and land, or intangible, such as intellectual property.

Ownership gives the owner legal rights of the resource acquired. This is supported and enforced by the protection of the legal system and government law and order. This gives owners peace of mind that their assets are legally protected and so, they are free to use their resources in any way they deem appropriate, without fear of loss. In an organised and stable society, the legal protection of ownership is paramount.


Under Maltese law (and virtually under all other western laws), ownership brings therewith certain rights, including 'the right of enjoying and disposing of things in the most absolute manner, provided no use thereof is made which is prohibited by law' (article 320, Chapter 16 of the Laws of Malta - the Civil Code).


The law actually differentiates between what we call ‘full ownership’ and what we call ‘bare ownership’. Full ownership grants a huge array of rights, so much that '[n]o person can be compelled to give up his property or to permit any other person to make use of it, except for a public purpose, and upon payment of a fair compensation' (article 321, Chapter 16). In fact, the protection of one's own property is also a fully-fledged human right, protected by article 37 of the Constitution of Malta, and Article 1 Protocol 1 of the European Convention on Human Rights.


The celebrated author Messineo described the power of ownership as ‘la proprieta dal punto di vista economico-sociale e la stabilita’ del possesso, e’ il potere di fatto trasformato in potere guridico, e’ quello che, messo in rapporto al fatto della produzione della richezza, gli economisti chiamano capitale, in contrapposto all’ elemento lavoro’. The right to ownership is almost absolute, so much that according to Baudry-Lacantinerie, the owner ‘puo anche trasformare la sostanza della cosa, lasciarla improduttiva, e persino deteriorarla o distruggerla; il suo potere e’ cosi assoluto che puo’ duingere sino ad abusare della cosa’. This principle is born out of the Roman principles that the owner is '...il’moderator et arbiter rei suae’, and that ‘expedit enim rei publicae ne quis sua male utatur’. In the famous judgment of Joseph Piscopo vs Anthony Darmanin (1 March 2001) the court emphasised on the fact that '...[i]r-restrizzjonijiet fuq id-dritt ta` proprjeta,` li huma kontra n-natura universali tal-istess dritt, f'każ ta` dubju għandhom normalment jġu esklużi aktar milli ammessi’.


But as with everything, there are some exceptions. Indeed, it is article 320 itself that after endorsing this wide-reaching right, it states that it exists '...provided no use thereof is made which is prohibited by law'. So therefore, one can choose to build his property the way he wants, so long as he acquires the necessary permits from the authorities, and so long that he doesn't tamper into the proprietary rights of his neighbours. One shall also abide by the private building regulations in the form of servitudes found in the Civil Code, such as building distances, among others. On the other hand, one can resist any invasion by a third party onto his property, unless of course, that invasion consists of a right afforded to that party according to law, such a right of passage or another easement. There are many of these rules.


Furthermore, in one's exercise of his proprietary rights, one must be careful not to cause harm to third parties. This principle was superbly explained in the judgment of Joseph Grech et vs Noel Cassar, delivered by the Court of Appeal (Inferior) on 4 October 2006:


'L-Artikolu 320 tal-Kodici Civili jiddisponi li "l-proprjeta` hija l-jedd li wiehed igawdi u li jiddisponi minn hwejjgu bil-mod l-aktar assolut basta li bihom ma jaghmilx uzu ipprojbit mil-ligi". Qui suo iure utitur non videtur damnum facere. Hekk del resto jinsab dispost fl-Artikolu 1030 tal-Kodici Civili: "Kull min jaghmel uzu ta' jedd tieghu fil-qies li jmiss ma jwegibx ghall-hsara li tigri b'dan l-uzu";


Dan l-artikolu jaghti dimostrazzjoni tal-fatt illi l-jedd ghandu jkun cirkoskritt b'ezercizju ta' godiment f'mizura appropriata, inkella min jabbuza hu assoggettat ghas-sanzjoni tal-ligi li jkollu jwiegeb ghall-hsara li tigri lit-terzi bi htija tieghu (Artikolu 1031 tal-Kodici Civili) jekk ghemilu ma jkunx temprat mill-prudenza, id-diligenza u l-hsieb ta' missier tajjeb tal-familja (Artikolu 1032 tal-Kap. 16).'


There is a lot to say about ownership rights under our law, and in discussing many legal principles (eg. servitudes, usufruct, emphyteusis, constitutional law, etc), article 320 of Cap. 16 of the Laws of Malta continues to crop up.


Dr Carlos Bugeja is a Partner at PROLEGAL Advocates.

 

Disclaimer: This article is not to be construed as being legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja at carlos@prolegal.mt.


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