The foreshore : a ‘res probabiliter in commercium’?

Abstract

Prior to the enactment of the Public Domain Act, Act XXV of 2016 amending the Civil Code of Malta, the foreshore, defined by the 1917 judgement of Lapira vs Canonico Capitolare Monsignor Giuseppe Caruana Dingli et as the land which the highest wave of the tide covers in the Winter, was considered as land in the public domain which was extra commercium, making it unable to be acquired commercially or for any other scope. With time, this notion has been loosened to the extent that the new Act now permits for persons to acquire the foreshore by the main means of concession and administrative permit, and even sets up a system whereby these land owners must register their rights within the Public Registry. Nevertheless, the Act falls short of describing the extent to which rights acquired over the foreshore prior to 2016 may be regulated. This study therefore analyses the main institutes found in both Civil and Public law, inter alia, which could lend to a possible hypothesis in answer of the query as to whether private rights may include more special limitations when it comes to their exercise when public rights, such as the right of access to the foreshore, are also at stake. The author shall aim to explore possible caveats to the right of absolute ownership as enunciated by article 320 of the Civil Code, Chapter 16 of the Laws of Malta, especially those rights of ownership acquired prior to 2016 through a thorough analysis of Maltese jurisprudence on Civil and Public matters to related to such merit.