When does a dividing wall become common? Doctrinal purity vs practical necessity

Abstract

When does a dividing wall (ħajt diviżorju) between two tenements in Malta become common (ħajt komuni)? Is it the moment a neighbour makes physical use of the wall—attaching beams, raising it, leaning upon it—or does legal co-ownership arise only after they compensate the exclusive owner in accordance with Article 418 of the Civil Code? This deceptively simple question has long generated doctrinal disagreement in Maltese law. The prevailing view in the courts is pragmatic: once the wall is used for construction or support, it is deemed common, and payment follows. But another interpretation—most clearly expressed by Mr Justice Giannino Caruana Demajo— insists that co-ownership arises only upon the fulfilment of Article 418, which explicitly requires prior payment.