Tabone vs Mizzi — Illegal Window Overlooking Neighbour's Courtyard

Neighbour opens window over plaintiff's courtyard without consent — Actio Spolii upheld

Qorti tal-Maġistrati (Għawdex) — Ġurisdizzjoni Superjuri · Magistrate Dr. Brigitte Sultana LL.D., LL.M (Cardiff) · 8 April 2026

The plaintiffs owned a property with a courtyard in Xlendi, Gozo. The defendants purchased the apartment directly above in January 2020 and subsequently opened a window (enlarging what had previously been a small blocked ventilator) that looked directly down into the plaintiffs' courtyard — without seeking permission. The plaintiffs brought an actio spolii — an urgent possessory action to restore the original state — and the court upheld all three required elements.

The Gozo Magistrates Court found all three elements of the actio spolii satisfied: (1) the plaintiffs had possession of the airspace above their courtyard (confirmed by their title deed); (2) the defendants had committed a violent and clandestine act of dispossession by opening the window without consent — the defendant himself admitted he never sought the plaintiffs' permission; (3) the action was brought within the two-month time limit. The court also found that the defendants had enlarged the original aperture, contrary to their denials, based on photographic comparison of before-and-after images. The defendants were ordered to seal the aperture within one week of the judgment becoming final, failing which the plaintiffs were authorised to carry out the work at the defendants' expense.

• The actio spolii (Art. 535, Civil Code Ch. 16) does not require the plaintiff to prove ownership — only that they had possession of the thing at the time of the act
• Airspace above a courtyard is included in ownership of that courtyard — confirmed by the title deed wording 'with all its rights and appurtenances including its backyard and the airspace overlying the said backyard'
• Opening a window that overlooks a neighbour's property without consent constitutes violent and clandestine dispossession even without physical violence
• The two-month time limit for actio spolii (infra bimester) runs from the date of the act — here the window was opened on 16-17 April 2020 and the case was filed 21 May 2020
• In possessory actions the court examines only the fact of possession and the spoliation — it does not examine property rights or servitudes (those are for a separate petitory action)
• Photographic evidence was decisive — the court compared before and after photos to establish the aperture had been enlarged