Any benefits from Mepa concessions?

Over the years, some property owners have come in for a nasty surprise in discovering belatedly that their property is not in conformity with sanitary rules. This matter would typically come to light when they would apply to carry out alterations or when selling their property. These deficiencies, once discovered, could hamper a sale or, if the sale would have gone through, might also lead to a claim for damages or the rescission of the transfer and may have dire financial consequences on the owners.

August 1, 2012, brought into force a legal notice that would enable property owners to apply for and qualify for a concession if their property does not conform strictly to sanitary law. Property owners will now be able to apply to the Malta Environment and Planning Authority for a concession which, if granted, would imply that Mepa will not carry out direct action to remove the illegal development.

A decision by Mepa not to grant this concession is subject to appeal.

This measure is not new but had been introduced in 2001 and had covered development carried out within the development zone prior to January 1, 1993.

A request for direct action to be stayed in respect of illegal development could be made by the property owner following the issue of an enforcement notice. This measure did extend to a change of use or to development not in conformity with the official alignment.

The recent notice extends this benefit to internal yards and back yards that are smaller than the minimum area stipulated by law, to rooms built in the back yards of dwellings and to structures in any dwelling where the internal height is below the legal minimum. The requirement is that they would have already existed as at August 1, 2012 and the benefit is only being extended to residential development, thus excluding commercial development.

According to the recent legal notice, if the request is made between August 1, 2012, and January 31, 2013, Mepa will not be insisting on the production of evidence that the development existed prior to August 1, 2012, but the architect’s declaration, together with photographic evidence showing the development, would be sufficient.

This advantage lapses on January 31, 2013, following which the concession introduced would continue to be available to property owners but the onus of proving the existence of the development prior to August 1, 2012 would be placed on the applicant or his architect. No indication is being given as to what evidence would satisfy Mepa of the existence of the development prior to the operative date.

The recent notice is not to be considered an amnesty by any means. On August 3, 2012, Mepa published a circular, 4/12, outlining the procedure to be followed by architects and the documents to be attached to the application and stipulated a fee of €250 per residential unit. Although the legal notice does not specify this, the circular states unequivocally that, apart from exempting such development from direct action, applicants who obtain this concession would be granted a certificate enabling them to apply for the supply of water and electricity services to their property.

According to the circular, once the concession is granted, property owners could also apply for further alterations and additions and their application would be accepted. The circular merely refers to the eventual acceptance of an application for alterations by Mepa but does not mention whether permission would be granted notwithstanding the existence of the sanitary infringements.

Indeed, this last benefit is in contradiction to the provisions of article 91 of Chapter 504. This provision makes it clear that although, in terms of this concession, Mepa would not be able to remove the illegal development, any such infringements would have to be sanctioned once an application is filed for any further development. Thus, the extent of the concession being granted and its legality remains to be seen.

The circular also makes it clear that applicants may only benefit from the legal notice if the infringements are limited to sanitary infringements that are specified. Therefore, if other infringements exist, the sanitary infringements cannot be sanctioned and it can be presumed that, likewise, the other infringements cannot be sanctioned owing to the existence of the sanitary infringements.

Some obvious questions regarding the effectiveness of this legal notice spring to mind.

Would the commercial banks grant financing to prospective owners in order to acquire property that qualifies for this concession? How long will Mepa take to process such requests and would prospective buyers be keen to acquire a property that qualifies for this benefit?

From a civil law point of view, the existence of the infringements implies that the property is still in contravention of the Code of Police Laws and, therefore, the problem will, in my view, continue to persist.

Another problem that may arise relates to blocks of apartments, which are the main culprits when it comes to sanitary infringements.

An application for a single unit in an entire block will, no doubt, alert Mepa to the fact that all or some of the apartments are not built in accordance with sanitary regulations, even if the other apartment owners do not apply for the concession.

Therefore, it would be advisable to proceed with caution and for the owners of an entire block to discuss this issue and, ideally, to submit a single application to Mepa so that the entire block would benefit from the concession and only one set of plans would need to be prepared.