The First Hall of the Civil Court has recently delivered a judgment where it examined the actio publiciana and the standard of proof applicants must meet to win their lawsuit. The actio publiciana is not found in the law but is recognised by case-law as a derivative of the actio rei vindicatoria found in article 322 of the Civil Code. The rei vindicatoria is an action by which plaintiffs can reclaim property from which they have been dispossessed. It is directed against the possessors of the property, who may then choose to remain silent or raise a title as a defence. If the parties both claim title, the action transforms into a publiciana, and the burden of proof imposed on the plaintiffs to win their case is lowered to the point that ownership falls on who proves the better title.
Facts of the case
The plaintiff claimed to be the emphyteuta of a portion of land she had inherited. She claimed that the land had been given on perpetual emphyteusis by the government to her predecessor, who later leased it to a tenant in 1825. The ground rent was originally paid to the government by the emphyteuta himself and by his representatives on his behalf, and later by the tenant on his behalf, as indicated in the government ledgers. However, along the line, the reference to the mandate suddenly stopped, such that payment appeared to be made by the tenant/s without any reference to the emphyteuta. After many years of such payments by the tenants and their successors, they were eventually recognised by the Commissioner of Land as the emphyteuta of the land in question by means of a public deed, and subsequently, the Lands Registrar issued a certificate listing them as such. Following this, the successors transferred their ‘title’ over the property in question to third parties.
The plaintiff thus proceeded against the tenant’s successors and the new buyers to reclaim possession of the land. Apart from this, she asked for the rescission of the public deed entered into with the Commissioner of Land, the rescission of the subsequent contracts transferring the ‘title’ over the property and the rectification of the certificate issued by the Land Registrar.
The defendants, on the other hand, rejected the plaintiff’s claim, arguing that their predecessors were lawfully recognised as the utilisti (emphyteuta) of the land. They also raised the plea that the plaintiff’s action was time barred as per article 2143 of the Civil Code.
Neither party was, however, able to present an original deed of title to show for certain who had originally acquired the property.
In giving its decision, the court explained that traditionally, plaintiffs who wanted to reclaim their property would typically resort to the rei vindicatoria action, which required them to present concrete and conclusive evidence that they owned the property in question. This meant that they had to present an original title. The burden of proof was high (aptly referred to as the prova diabolica), with any slight doubt going in favour of the defendants. Failing to meet this burden of proof would result in the plaintiffs losing their case, even if the court was not satisfied that the defendants had a proper title at law over the property.
However, in time a different approach was adopted as the courts recognized the difficulty, and sometimes impossibility, of presenting an original title. The courts came to favourably look upon the actio publiciana , a derivative of the rei vindicatoria, whereby plaintiffs no longer had to present an original title, but only a better title than that claimed by the defendants. The court adopts this approach whenever the defendants in a rei vindicatoria case raise a title as a defence. In such a case, the rei vindicatoria action transforms itself into an actio publiciana, and the court compares the titles of the parties and decides which of the two is the better one.
Application of the actio publiciana rules to the present case
The court adopted the actio publiciana rules and proceeded to compare their titles. It examined the entries showing the dates on which the payments of ground rent were made and by whom. From the evidence presented before it, the court found that during the period the tenants paid the ground rent to the government (without the ledger entries specifying if payment was done on behalf of someone else), they were also still paying the rent due to the plaintiff’s predecessor under the 1825 lease agreement. This contradicted their position that the defendants’ predecessors were the utilisti (emphyteuta) as one cannot be owner and tenant of the same property at the same time. The court also rejected the prescription plea on the basis that the plaintiff’s predecessors were still accepting rent from the tenants.
The court concluded that the tenants most likely kept paying the ground rent on behalf of the plaintiff’s predecessors (who were the actual utile domini), but the reference that payment was being made on their behalf was left out for no valid reason. It, therefore, found in favour of the plaintiff and declared her the rightful emphyteuta of the land. The court also allowed her other claims, ordering the rescission of the contracts by means of which the land was transferred to third parties, as well as the cancellation of the registration at the Land Registry.
This judgment reiterated the basic principles dealing with the actio rei vindicatoria and the actio publiciana. It shows the court’s more reasonable approach when presented with two titles. Apart from this, the judgment goes to show that these actions can be resorted to by utili domini and not only by people who have full ownership over a property. The judgment did not, however, go into the consequences of each respective action. Other judgments delivered by the civil courts have reiterated that if plaintiffs successfully present an original title, they can enforce their title against any person, whereas if the court adopts the actio publiciana rules and concludes that the plaintiffs have a better title than the defendants, the title may only be enforced against defendants of the suit.