LEG AL
28 · MONEY
ISSUE 55
Edward is a senior partner at Fenech & Fenech Advocates, specialising in litigation for the past 37 years, and practising in Civil and Commercial Litigation and Property Law.
A court judgment last May could turn out to be a game-changer for owners whose properties have been occupied for generations. Edward DeBono of Fenech & Fenech Advocates explains the implications to MONEY. The recent landmark judgment has offered a ray of hope to numerous owners whose properties have been rented out, sometimes for generations, at paltry rents.
recent years by our local courts, albeit only after impregnable case law had first been established by the European Court of Human Rights (ECHR).
rural tenements cannot possibly pass the test of proportionality for tenements worth hundreds of thousands of euros if not millions.
The judgment was delivered by Judge Lawrence Mintoff presiding over the First Hall of the Civil Court in its Constitutional Jurisdiction in the names Anthony Debono et vs Avukat Generali et, concerning the constitutionality of pre-1st June 1995 nonrequisitioned residential leases.
The ECHR has, over the years, struck down various Maltese laws which gave protection to sitting tenants at grossly unfair terms, to the detriment of owners, including – for example — the infamous Act XXIII of 1979 and Chapter 158 of the Laws of Malta which allowed tenants to convert a temporary emphyteutical concession (ċens temporanju) into a perpetual lease, which lease could also be inherited by family members residing with the tenant.
Despite the ECHR’s repeated calls for the Maltese government to “put an end to the systemic violation of the right of property”, the Maltese Parliament has remained indifferent. The only reaction came in August of 2018, with the introduction of yet another repressive amendment to the law, in the form of Act No. XXVII of 2018.
At stake were all those owners whose properties had leases prior to 1995. These long-suffering owners have for generations had to pay succession duty taxes on their properties at market rates and yet receive paltry compensation in rents capped by Ordinance XVI of 1944 to the market rate as at August 4, 1914. Owners of all properties are to receive fair compensation for their property if the tenants are to continue being protected in their tenancy rights. Without striking a fair balance between the rights of the owner and those of the tenant, one cannot possibly save our system from continually being lambasted by the European Court of Human Rights of unconstitutionality. This judgment has not come in a vacuum. Similar cases have been delivered already in
Previous case law has dealt with commercial premises, band clubs, and leases of decontrolled residential premises, as well as leases emanating from temporary emphyteutical concessions, all of which have been repeatedly declared unconstitutional by our Constitutional Court and the European Court of Human Rights. A number of lawsuits are also pending before the First Hall of the Civil Court in its Constitutional Jurisdiction concerning agricultural leases, and although these cases are yet to be decided, it is evident that these leases too will be declared unconstitutional, as a few euros per annum as rent for fields, farmhouses and other
This law gave tenants of a dwelling under a title of lease created by virtue of Chapter 158 of the Laws of Malta, the right to continue occupying the property by paying a maximum rental of up to 2% of the value of the property, as established by the Rent Regulation Board, subject to a rather lenient ‘means test’. The unconstitutionality of Act XXIII of 1979 was clear for all to see. It could never be deemed constitutional to impose a forced landlord/tenant relationship upon a landlord who had entered into a temporary emphyteutical concession for an agreed period of time (most often to avoid the prospect of having his property requisitioned) when the 1979 law arbitrarily did away with the agreement between the parties and granted the tenant a perpetual leasehold, at a rent which effectively could never exceed
