The First Hall of the Civil Court (Constitutional), presided over by Mr Justice Silvio Meli, on March 26, 2013, in the case ‘Edward Zammit Maempel and Cynthia Zammit Maempel vs Housing Authority and spouses Jesmond and Carmen Abela’ held, among other things, that the Housing Authority was ordered to return a property to the owners, which had been requisitioned as well as to pay €50,000 compensation. The property was left in a state of abandon.

The facts in this case were as follows:

According to case law of the European Court of Human Rights, if there was no balance between the interests of the private owners and the public interest, there would be a violation of the rights of the owners

Edward and Cynthia Zammit Maempel were the owners of 85, St Francis Square, Alley No. 3, Qormi, with airspace.

On November 18, 1986, the owners granted the property on temporary ċens for 21 years to Salvatore and Dorothy Ebejer. Subsequently, on March 14, 1997, the premises were requisitioned by the Director of Social Accommodation and allocated to Jesmond and Carmen Abela. The emphyteutical concession was ceded in favour of the defendants. When the temporary ċens expired in 2007, the Abelas remained occupying the premises and offered to pay as tenants a rent of €139.76 every six months, which rent was not accepted by the owners.

The owners said that as this did not satisfy article 12 of Chapter 158, the Abelas had no right to occupy the premises. They complained that the rent was not increased and that the Housing Authority did nothing in this regard; nor did it pay them compensation for the requisition of the premises. In addition, their house was left to deteriorate, as both the Authority and the Abelas failed to maintain it.

The plaintiffs claimed that the compensation offered by the Authority did not reflect its market value and that the rent offered was also below the market rates.

It was stated that the plaintiffs were subjected to a disproportionate burden and that by the requisition order their right to enjoyment of their private property, as protected by article 1 of the First Protocol of the European Convention, was violated.

Faced with this situation, they proceeded to file a human rights action against the Authority as well as against spouses Abela. The Attorney General later intervened in the lawsuit in statu et terminis. They requested the court:

• To declare that the requisition order and the expropriation of their property violated their fundamental human rights, as safeguarded by the first Article of the First Protocol of the European Convention;

• To condemn the Abelas to return free and vacant the house, after revoking the requisition order and after declaring that the Abelas or any one of them had no right to reside in the property in question;

• To liquidate the compensation due to them as a result of the occupation of the tenement and as a result of the human right violation;

• To give any order or adequate remedy to remove the human rights violation, including an order that the Abelas be evicted, and to pay damages and compensation which could be liquidated in favour of the owners.

In reply, the Authority pleaded that it was not a legitimate defendant in these proceedings. Article 12A of chapter 158 protected the Abelas so that at the end of the ċens, they could reside in the premises with title of lease.

It had to be proven that the premises were in a dilapidated condition.

The Authority denied causing any damage to the building. In any event, they had available civil remedies.

If repairs had to be done, this was not of a constitutional nature.

It maintained that the Government had a right to legislate in the public interest and to determine and control rent laws by imposing limits on the amount of rent which could be demanded in such circumstances.

It contended that the quantum of rent (as increased) was fair and that there was no violation of any constitutional provision. article 12A of chapter 158 established the rent which was due and that if the plaintiffs felt that the amount was not sufficient, they should have challenged the validity of article 12A chapter 158, and if they did not do so, the court was bound by this provision.

Furthermore, it was argued that by accepting the rent from the Abelas, the plaintiffs could not advance their claims.

The Abelas, on the other hand, submitted that they should not be condemned for violating fundamental human rights of other persons. They were not responsible for the requisition order. They also pointed out that the plaintiffs’ claims should be dismissed, especially after they accepted the ċens/rent which they had paid.

The court-appointed architect reported that the tenement was in a state of abandon and had not been maintained for many years. The place was valued at €139,800, and having a rental value of €4,893. Approximately €25,000 had to be spent to repair the damage.

It considered that the plaintiffs were the owners of the property. The premises were requisitioned on December 31, 1992. The requisition order was still in force and effective.

No reason was given for the requisition order. At the time the property was expropriated, the Ebejers occupied it, and later it was granted on sub-ċens to the Abelas. Eventually, when the sub-ċens lapsed in 2007, the plaintiffs did not wish to recognise the Abelas, as their tenants. They refused to accept the rent. It was agreed that the Authority had to act in the public interest and could only expropriate property in the common interest.

The court noted that the Authority was responsible for the property, for abandoning it, and for rendering it unfit for living purposes re Cassar vs Zammit (CA) dated May 29, 1959. In view of the fact that the property was abandoned by the Abelas and not maintained, it did not appear that the requisition order was justifiable. According to case law of the European Court of Human Rights, if there was no balance between the interests of the private owners and the public interest, there would be a violation of the rights of the owners.

As the court noted in Fleri Soler et vs Malta dated September 26, 2006, the Authority failed to strike a balance between the interests of the parties and concluded that there was a violation of article 1, Protocol No. 1 of the European Convention.

“There must also be a reasonable relation of proportionality between the means employed and the aim sought to be realised by any measures applied by the state… a ‘fair balance’.”

In Ghigo vs Malta dated September 26, 2006, the court held “a disproportionate and excessive burden has been imposed on the applicant.

“The latter had been requested to bear most of the social and financial costs of supplying housing accommodation…”.

In this case, the requisition order did not even satisfy the requisites of ‘supplying housing accommodation’, as the defendants abandoned the same tenement and left it to deteriorate.

The court could not understand how the requisition order was not revoked after the defendants abandoned the property.

The Authority was responsible to the owners. The property was abandoned and now considerable costs had to be incurred to render it fit for habitation, which expenses could have been avoided, if the Authority had maintained the property.

There was a big discrepancy between the rent offered to the owners on the basis of article 12A of chapter 158 and the actual rental value.

This was not proportionate as dictated by our Constitution and the European Convention of Human Rights.

The Authority had to act in the public interest, instead of trying to defend the Abelas’ incorrect acts.

For these reasons on March 26, 2013, the First Hall of the Civil Court gave judgment by declaring the requisition order RO53704 in relation to tenement 85, St Francis Square, Alley No. 3, Qormi, with airspace, violated the owners’ human rights under article 1 of the First Protocol of the European Convention of Human Rights in respect of which the Authority was responsible.

The court condemned the Authority as well as the Abelas to release to the owners, Zammit Maempel, the property, and declared the requisition order to be null and void.

In addition, the Authority was condemned to pay owners €50,000 compensation, and ordered the Abelas to vacate the property within one month from the date of this decision.

Dr Karl Grech Orr is a partner at Ganado Advocates.