The case for the criminalisation of the usurpation of immovable property

Abstract

‘Usurpation’ is a term often used in legal jargon and in everyday parlance. It is commonly associated with abuse of power, but may also refer to the unauthorised violation of immovable property. Its use in Malta in relation to immovable property is however very scant, and the few allusions to it are furthermore limited to Civil law. Is this because such notion does not extend to other areas of law? Certainly not; ‘usurpation’ which owes its origin to the crimen termini moti under Roman Law, is indeed a well-established notion in the Criminal Codes of Italy and Spain and has, to a great extent, been present in these Codes since their inception. So how can one explain its absence from Malta when these islands have a long tradition of Roman law? Is it because the unauthorised violation of immovable property in Malta is not an issue? Is it not altogether uncommon that one comes across houses which are broken into and conveniently converted into places of abode? Is it not a common place to notice the foreshore littered with boathouses built on public property in the northern part of the island? So why is such notion absent from the Maltese Criminal Code? We probably owe this absence to Sir Andrew Jameson an eminent Scottish jurist commissioned to carry out a report on the criminal laws in Malta. It was the view of this jurist that ‘usurpation’ should not appear as an offence in the Maltese Criminal Code; a view endorsed by the Maltese legislator. Was it a wise choice? Should the Maltese legislator follow the approach taken by his Italian and Spanish counterparts? The objective of this thesis is precisely this: to discover whether ‘usurpation’ should be introduced into the Maltese Criminal Code.