The Constitutional Court yesterday confirmed a judgment of the First Hall of the Civil Court that ruled that the provisions of a law governing the redemption of ground rent in a perpetual emphyteusis was not in violation of applicants' fundamental human rights.
The judgment was delivered in the constitutional case filed by architect Joseph Barbara, Josephine Azzopardi, Anna Maria Saddemi, Patricia Anastasi and Greta Bartolo Parnis against the Attorney General and Anthony Cachia.
The first court heard that Mr Barbara and his family had acquired land at St Julians by title of perpetual emphyteusis. They had constructed a property known as St Julians Court, St Julians, on the land. In 1957, the property had been granted to the British Armed Forces by title of temporary emphyteusis for 45 years, and the grant expired in 2002.
In 1977, the British Forces had granted the remaining part of the emphyteutical grant to the government which, in turn, in 1978, granted the property to Holiday Services Co. Ltd for the remaining period of the emphyteusis. Mr Cachia was occupying one of the apartments within this block.
The Barbara family referred to amendments enacted in 1979 to the Housing Decontrol Ordinance. They claimed that in terms of sections 12(4) and (5) of this law, the property owner was deprived of his right to resume possession of his property after the expiration of a temporary emphyteutical grant.
According to this law, the occupier, under certain conditions, was entitled to convert the grant to one of perpetual emphyteusis.
A 1981 amendment to section 1501 of the Civil Code entitled the occupier, under title of perpetual emphyteusis, to redeem the ground rent payable by capitalising the ground rent at the rate of five per cent.
According to the Barbara family, section 1501 was in violation of their fundamental human rights to enjoyment of property and to freedom from deprivation of property without adequate compensation.
The first court noted that the laws complained of by the Barbara family did not mean that the government had expropriated their property. The government had introduced legislation that regulated the property rights of citizens.
In fact, when the government had taken over properties that formerly belonged to the Church, the government was facing the same situation as the private citizen, for many of these properties were going to be redeemed by their occupiers in terms of law.
Judgments of the European Court of Human Rights declared that in terms of the European Convention of Human Rights the state could only interfere with property if it was serving a legitimate public or general interest.
The state was entitled to enact such laws as were deemed necessary to control the use of property in accordance with the general interest.
These laws were especially called for and usual in housing which, nowadays, was a central concern of social and economic policies.
In this case, the court pointed out that the purpose behind the amendments to the Civil Code was that of regulating relations between private individuals, and not forced expropriation of property. This legislation aimed at redeeming perpetual emphyteutical grants.
The government had wished to modify or gradually terminate the institute of emphyteusis which had already been abolished in many European countries as this was a feudal institution based upon the idea of the landowner and the individual, or serf, who worked and maintained the property.
The first court found that the authorities were in the position to judge what was required in the public interest.
The court concluded that there was nothing manifestly unreasonable in the measure taken by the government when section 1501 of the Civil Code was amended as this regulated the relationship between property owner and the emphyteuta.
The fact that the Civil Code authorised the contracting parties to establish rules between them did not mean that Parliament was forever bound not to change the law.
The right to property, the court said, was not an absolute right and there were many examples, within the Civil Code, where agreements between contracting parties were considered to be null and void.
With reference to the 1979 amendments governing the conversion of temporary emphyteutical grants to perpetual emphyteusis, a judgment of the European Court of Human Rights ruled that there had to be a fair balance between the demands of the general interest of the community and the protection of the individual's fundamental rights.
This law, as amended, granted the emphyteuta the right to convert the emphyteusis to a perpetual emphyteusis against payment of a ground rent increased by six times that payable prior to the conversion.
If such an emphyteutical grant was redeemed, then the emphyteuta had to capitalise the ground rent at five per cent, which meant paying 20 times the annual ground rent.
Furthermore, the emphyteuta was entitled, but not bound, to redeem the ground rent payable.
While it was true that applicants were not obtaining the same return on their property, in terms of these laws, as though they were selling it on the open market, the European Court had ruled that the convention did not guarantee a right to full compensation in all circumstances.
Legitimate objectives of public interest, or measures designed to achieve greater social justice could call for less than reimbursement of the full market value.
The Barbara family had invested money in order to construct its property almost 50 years previously. During this period they had received ground rent in respect of the property and the occupiers had maintained the property.
The compensation they could receive was objectively justified in view of the measures introduced in the public interest.
The Barbara family appealed to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.
In yesterday's judgment this court said that the original grant of the land had been one of perpetual emphyteusis and not a temporary grant, and therefore section 1501 of the Civil Code was not applicable to this case.
The redemption of a perpetual emphyteusis, in itself, did not present any difficulties. When property was granted on perpetual emphyteusis, the owner was divesting himself of the property forever, and retained only a proprietary right to receive regular payments of money.
The redemption of such an emphyteusis, as provided for in section 1501, was in reality the consolidation of the right of the property's occupier to acquire the full ownership of the property with the right of the owner to receive payment.
The Barbara family had submitted that a temporary emphyteusis could be converted to a perpetual emphyteusis, and that this could be followed by the redemption of the ground rent in terms of section 1501.
However, the Barbara family had not filed their case complaining of the provisions of the Housing Decontrol Ordinance.
In this case, no evidence was produced to show that the sub-emphyteuta had effected the conversion of the temporary emphyteusis. Furthermore, the Constitutional Court ruled that the conversion could not take place in this case as the original grant of the land in favour of the Barbara family had been one of perpetual emphyteusis.
The court remarked that it was substantially in agreement with the analysis made by the first court on the provisions of the Housing Decontrol Ordinance, but that in this case the emphyteutical grant could not be converted to one of perpetual emphyteusis.
The court concluded by confirming the judgment of the first court.