Rights of immovable property co-owners

"The right of ownership takes precedence over possession, unless it was acquired as a privilege or right and registered in the Land Registry"

The right to own immovable property, and by extension co-ownership, is protected by Article 23 of the Constitution and the co-owner has the same right to possession and enjoyment of the property as the other co-owner. As long as the co-owner did not limit his right with an agreement to grant possession to another co-owner or did not grant a right or privilege and was not registered in the Land Registry, based on the provisions of article 4 and 11(a) of the Immovable Property Law, Cap. 224, which refer to the right of enjoyment and lifetime possession, cannot be evicted or excluded by the other co-owner from the immovable property. Co-owners on the basis of the right of ownership, have a joint right to possession and enjoyment of the property, as is the case with tenants in common. Any act intended to evict or exclude or prevent a co-owner from entering, staying, occupying and using the commonly owned property, constitutes unlawful interference and creates an actionable right for trespass against the offender.

In this case, the evicted or excluded co-owner is entitled to claim a Court order to restore him to joint ownership, an order to give an account where there is income, as well as damages for the loss of the rental value of his share. In the case of a lawsuit where illegal trespass is proven, but no evidence is given to prove the damage due to loss of use, an order is issued for the recognition, protection and restoration of the right of possession, for providing an account and nominal damages, which are usually awarded in the amount of €100, plus costs.

A question of co-ownership and right to possession of common property usually arises between relatives, when they do not agree to the joint enjoyment and development of their jointly owned property, or to its separation and distribution, so that each of them will receive his share, or to the sale of the property by private agreement and distribution of the proceeds of the sale. Where co-owners do not co-operate with each other, the solution offered is to sell the property by public auction.

An informative decision indicating the power and value of the right to property was issued by the Supreme Court in C.A.336/2014, dated 13.07.2023, in which the Court analyzing jurisprudence, concluded that the Court of first instance correctly ruled that the right of ownership takes precedence over possession, unless the latter has been acquired in such a way as to operate as a privilege or right to the detriment of the right of ownership, by entry in the books of the Land Registry.

An owner of a house with auxiliary rooms at the yard, transferred 1/2 share to his daughter and subsequently signed an agreement with his ex-wife granting her the lifetime right to possess and use the house with their daughter, as well as the right to rent the auxiliary rooms and manage the income from their rental. The co-owner subsequently remarried and transferred the other ? share to his wife, who demanded that the daughter and ex-wife residing in the residence allow her to reside as well, but was denied.

The case ended up in Court following an action by the co-owner against the other two persons (the daughter and the ex-wife) and she succeeded in securing an order ordering them to allowing her and her dependents to freely entering, occupying and using the house, an order prohibiting them from preventing her from taking furniture into the house, an order against the daughter to give her a key of the house and the auxiliary rooms and a judgment for €100 nominal damages.

In the appeal by the daughter-co-owner and her mother, the Supreme Court approved the first-instance decision and the relevant jurisprudence cited, and indicated that it was decided that the co-owner can sue the other co-owner for unlawful interference, if he has actually been evicted or he has been deprived of his property. The respondent-co-owner never decided to limit the right to her property, nor did she grant possession of the disputed house to any of the appellants by agreement.

The Court of first instance rightly ruled that the agreement cannot bind the respondent, even if she acquired the property later. The respondent deserved the acquisition of possession of the property and a contrary view would deprive her of the enjoyment of the property and of this constitutionally guaranteed right of ownership, according to Article 23 of the Constitution.

?