Throughout the years, it has been a staple in our Law of Lease that a property rented must be utilised according to the use for which it is rented. By way of example, a property rented as a garage cannot be transformed into a snack bar without the owner’s consent (whether tacit or expressed). This principle holds true to many scenarios, and it has been said that change of use gives the right to lessor to terminate the lease.
Eventually, this principle led to the birth of another, one possibly inspired by the teachings of the celebrated author Laurent, who had said that “non si usa della cosa secondo la sua destinazione non usandone”; meaning that one cannot utilise a property consistently with its use, if it’s not used at all.
This means that a property abandoned by the lessee is treated in the same way as a property the use of which had been transformed, and a tenant may be evicted on the basis that he is not making use of the property subject to lease. This principle is more or less settled, and has been even made part of our written law of lease, if with a slight twist.
In fact, article 1555 of the Maltese Civil Code states that if the lessee uses the thing leased for any purpose other than that agreed upon by the parties, or as presumed, or in a manner which may prejudice the lessor, the lessor may, according to circumstances, demand the dissolution of the contract. Article 1555A adds that in the case of a residential property, failure to use it for a period exceeding 12 months shall be deemed to be used in breach of the law.
What is perhaps less settled is the question of how this principle is to be practised when the tenant abandons the property not through his free will, but due to health or medical reasons, which force him to spend time away from his home, be it in hospital, with a family member, or otherwise.
The judgment of the Rent Regulation Board of March 26, in the names of Anna Maria Falzon v Paul Sant was partly an attempt of the board to answer this question.
It has been said time and time again that in these cases, it cannot be automatically stated that the tenant would have abandoned the lease or renounced to his right of tenancy. It has been said that one cannot exclude that the tenant could for one reason or another, return to hisrented home and continue in his tenancy. What is important is for the Rent Regulation Board to carefully examine the facts of the case and decide upon the specific merits before it. Indeed, the law directs the Rent Regulation Board to decide “according to circumstances”, today in accordance with article 1555 of the Civil Code.
A tenant may be evicted on the basis that he is not making use of the property subject to lease
It must be said that our law does not limit this only to health reasons; the proviso to article 1555A of the Civil Code states that when a person has failed to use the leased tenement due to being temporarily absent from the tenement due to work, study or healthcare, then such failure shall not be deemed to be capable of bringing about the termination of the lease.
The question that follows is: what is to be considered as temporary absence?
The law does indeed provide a specific mechanism, largely introduced by Act X of 2009.
In this case, the landlords sought to obtain the eviction of their tenants, among others, on the basis that they had abandoned the property and had instead been living in a retirement home, and that their daughter had no valid title to replace them in their occupancy. They also demanded the eviction of the tenant’s daughter, who was claiming that she had obtained the right to continue in the tenancy enjoyed by her parents.
The Rent Regulation Board quoted articles 1555 and 1555A of the Civil Code, and went on to quote the law, stating that when the lessee of a lease which started before June 1, 1995 is recovering in hospital or in an old people’s home, and where such person is certified to be permanently dependent on the institution, the lessor shall have the right to terminate the lease, unless the circumstances show the existence of a person who has the right to ‘inherit’ the right of tenancy in terms of the law.
Considering the facts of the case, the Rent Regulation Board found that one of the original tenants in this case had passed away, whereas his wife had been living at a retirement home for the previous four years. The Board found that the surviving tenant had a degree of dependency on the institution where she was residing, and that it was highly unlikely for her to return the property leased, despites efforts made to the contrary by the daughter to prove otherwise
The board therefore acceded to the plaintiff’s request to terminate the lease in respect of the tenants and ordered their eviction. The board further stated that their daughter had failed to show that she qualified to continue the tenancy according to the criteria laid down in the law, and hence moved to apply the lifeline afforded by article 1531G (b) of the Civil Code, by giving her the right to continue occupying the property by lease for a period of five years, with a rent equivalent to double what was being paid by her parents. The Rent Regulation Board ordered that upon the expiration of the five-year period, the plaintiff could take back their property, as one free of any tenants.
Carlos Bugeja is senior associate at Azzopardi, Borg & Abela Advocates.