ACT X of 2009 purported to bring in line the rent laws regulating inter alia residential properties and has been incorporated in the Civil Code. Occasionally, this law comes up for public criticism mainly because of the rent level imposition of old leases.

Besides the question of rent there is, however, a superior overriding right which has been usurped. This is the right of ownership, a human right protected by European conventions.

Present legislation deprives owners of this full right of ownership, which confers on the owner an ultimate and exclusive right of possession and use. This ultimate right can become subject to certain limitations in the general interest of society, which are not to be arbitrary.

The application of these limitations is exactly what first happend to residential properties in the 1930s. This was followed by various legislative amendments. An attempt for a final facelift was made by Act X of 2009.

In spite of various submissions by organisations and individuals before this law was presented in Parliament, some retrograde provisions were left or introduced, reminiscent of the previous provisions. These constitute an infringement of both the right of possession and the right of use.

It is the government’s duty to step in and protect the general interests of society according to the accepted European norm that a fair balance is to be struck between the interests of the property owner and the general interest of society as a whole. Currently, this balance is upset against the owner whose only redress is to seek legal action.

A redress in relation to the rent level would take the form of a pecuniary adjustment. However, a redress against the unilateral imposition of a period of lease settlement can be more far-reaching because it would mean a dissolution or limitation of the period of lease to enable the owner to regain possession.

The background of all this scenario is article 17 in the Protection list of the universal declaration of human rights. This is the right to ownership and is expressed as follows:

Everyone has the right to own property alone as well as in association with others.

No one shall be arbitrarily deprived of his or her property.

Furthermore, the right to peaceful enjoyment of possessions is enshrined in article 1 of Protocol 1 of the European Convention on Human Rights. Any violation or limitation of such a right, except if in the general interest of society or to procure payment of taxes or penalties, would result in the payment of a just compensation or reversal of possession.

These principles are also to be found almost word for word in the American Convention on Human Rights.

The 2009 amendment, under the guise of removing the continuation of the lease from children and descendants without limit, now restricts this right only to the children of the tenant. This means that children of a tender age will have the right to continue the lease well into old age,that is 60 or 70 years from now.

It is an obnoxious law that will have lasted for a century and a half – a whole 150 years of deprivation of the right of ownership.

A whole 150 years of deprivation of the right of ownership

This usurpation hits hard at the tradition that we have and I believe a country’s social usage should always be respected, that families help to provide homes to their children on marriage whenever this is possible. But, no, this is no longer so. This right has been transferred to the tenant.

Losing this right of possession owners have lost not only the right of physical enjoyment of the property but also the right of use. The right of leasing the property has been completely and unilaterally usurped and enshrined to favour a sitting tenant, possibly till the turn of the century.depriving the owner of a mutually acceptable rent and of the choice of tenant.

This situation goes against the drive of home ownership and a fair distribution of wealth, especially when one considers that there are tenants enjoying the property of others when they have property of their own, which they use either for letting or for weekend enjoyment.

Any such tenant with the rudiments of economics would not vacate a rented house, for which he is paying around €185 yearly, to move into his own property, which, if let furnished would be yielding him €12,000 annually in prime areas.

Owners have been living in hope,which, unfortunately, has turned out to be a short respite against realities.

The 2009 amendment contains these and other shortcomings which go against the proverbial wisdom of the legislator. They have placed the burthen on our courts to interpret the application of the whole body of this legislation in an equitable manner according to the circumstances of each case.

A historical view would show that owners have been on their knees requesting successive administrations to give them their due, albeit unsuccessfully, lacking sufficient brawn, as in a trade union, to issue ultimata.

The only recourse was to the courts, which had to apply the law or, otherwise, declare it unconstitutional.

At long last, a case was referred to the European Court of Human Rights, Amato Gauci vs Malta, which was decided in favour of the applicant.

It was decided that the applicant suffered an infringement of his property rights when the law imposed on him a unilateral lease relationship for an indeterminate time without providing him with a fair and adequate rent.

It is to be noted that the basis of this decision is “infringement of property rights”. This is the core of the problem. From here emanate the two infringements, namely (1) the imposition of a tenant for an indeterminate period of time and (2) the absence of a fair and adaquate rent.

In our administration of justice, case law is of extreme importance, especially in the relationship between lower and superior courts. Are we to consider the clear and express words of the Europen Court of Human Rights as the final word until an appropriate amendment is introduced in our legislation?

The case above was decided unanimously on September 15, 2009.

The Court was composed of seven judges, including Giovanni Bonello. The applicant was awarded damages amounting to €20,025.

It is interesting to note that this amount, besides cost and expenses, included €1,500 in respect of non-pecuniary damage for feelings of anxiety and stress the applicant must have sustained.

Another case instituted by Anthony Aquilina, on the same bases, in the European Court of Human Rights had the same outcome. The European Court ruled that property rights under the convention had been violated and the government was ordered to pay Aquilina €21,550. This was after the Maltese courts had dismissed Aquilina’s claims.

Act X of 2009 was intended to correct a situation that was crying out for amendment. With these judgments on hand, can we in all sincerity say that a fair balance has been struck between the interests of the owner and the general interest of society and that there is no element of arbitrariness in the unilaterally imposed lease conditions, which, obviously, contain the spirit of the old law in their blood?

Can we in all sincerity state that a social reason exists that tenants should continue occupying a property at the expense of the owner for another two generations and at a price out of line with market prices?

Can we in all fairness accept that where a social reason exists the government should turn on private property in violation of property rights rather than providing social housing?

Indeed, every case has to be considered on its own merits but these are questions which have to be answered when reviewing the present law.

In the meantime, are we to expect owners to follow suit, waste time and energy in the protection of their rights and finally burthening the government with hefty compensations by instituting proceedings in the European Court of Human Rights?

Antoine Cachia, a lawyer, is a former vice president of Din l-Art Ħelwa.

Sign up to our free newsletters

Get the best updates straight to your inbox:
Please select at least one mailing list.

You can unsubscribe at any time by clicking the link in the footer of our emails. We use Mailchimp as our marketing platform. By subscribing, you acknowledge that your information will be transferred to Mailchimp for processing.