Recently there has been a shift in what Maltese courts consider to be an adequate remedy for landlords whose property rights have been violated by the state. The European Court of Human Rights (ECtHR) has criticised our domestic courts on a number of occasions, for falling short of providing an adequate remedy to the individual. In the case of Anthony Debono vs Attorney General, the Maltese Courts compensated the individual and declared that the unconstitutional rent laws in question could no longer be relied on by the tenant. This, however, meant that landlords had to file another lawsuit before the Rent Regulation Board to have the tenant evicted on the basis of the previous judgement declaring the protective rent laws unconstitutional.

The recent judgement, Joseph Camilleri vs Attorney General and Sylvia and Dennis Fenech delivered by the First Hall Civil Court (Constitutional Jurisdiction), is considered important for the reason that the Court actually goes a step further and evicts the tenant from the tenement, avoiding the need of separate proceedings with their extra costs and delays. The case follows the Portanier v Malta case, where the ECtHR questioned the purpose of the previous approach.

Property Requisitioned by Housing Authority and leased at low rent

The plaintiff was the owner of a tenement in Hal Tarxien, which had belonged to his late mother. The property was requisitioned by the government in 1985, and given to third parties. In 1986, the tenement was assigned to Anni Mercieca (mother of Dennis Fenech), and following her death, the plaintiff asked the Housing Authority to issue a derequisition order so that he could sell the property. The Authority did not accept his request, and he had no choice but to enter into a lease agreement with Sylvia Fenech, who converted the lease into her own name. In 2009, the Authority conducted a means test on the defendant, to determine if she still required the property as a residence. The tenement was later derequisitioned, but the defendants remained in possession of the property because their lease agreement was protected by the special rent laws.

This effectively meant that the plaintiff was stuck with a lease agreement with the rent fixed at a yearly sum of €211.66.

The plaintiff that this was tantamount to an effective deprivation of his fundamental right to enjoy his property, without being adequately compensated, violating both his right under Article 37 of the Constitution, and Article 1 of Protocol 1 of the European Convention of Human Rights.

No ordinary remedy available at law

The Attorney General claimed that the plaintiff had an ordinary remedy available at law, to both challenge the requisition order, and to not accept the lease agreement. It is well-established in Maltese case-law that an ‘ordinary remedy’ is one that is effective, accessible, adequate and practical. The Court referenced the ECtHR, which had already considered this argument in Ghigo vs Malta. It stated that a requisition order is imposed on an owner, with the latter having little to no influence on the choice of the tenant or the lease agreement. The remedy provided by law, was therefore, not effective, accessible, adequate and practical. Also, under Article 8 of the Housing Act, the landlord had to prove a ‘hardship’ to not be bound by an agreement, meaning that the owner could not take back his property for his sole enjoyment. Therefore, the plaintiff’s only resort was a constitutional case.

Requisition order violates the Constitution

Article 37 of the Constitution protects the individual’s right from compulsory dispossession without adequate compensation. “No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where provision is made by a law for adequate compensation…

The Attorney General argued that there had been no violation of Article 37, because the lease did not amount to a compulsory dispossession, but it simply controlled the owner’s use of his property.

The Court found in favour of the plaintiff interpreting Article 37 widely, stating that it primarily concerns the limitation of enjoyment of property, rather than the dispossession of property. It went on by saying that when a requisition order substantially deprives the plaintiff from enjoying his property, such order can be classified as an ‘interest over property compulsorily acquired’, leading to a violation of the Constitution.

Landlord suffered a disproportionate and excessive burden

When determining whether there has been a violation of the right to property under Article 1 Protocol 1 of the Convention, the ECtHR considers whether or not the victim has suffered ‘a disproportionate an excessive burden.’ The Civil Court considered the fact that the rent received amounted to €211.66 yearly, when the tenement in question could be leased for €300 per month. The argument that the rent increases every three years according to the rate of inflation was not considered to be legally sound, because the rent is not at all come close to today’s market value; therefore the rent was disproportionate and the State did in fact violate the plaintiff’s rights under the Convention.

Judicial remedy – Court orders tenants to evict property

The Court firstly referred to Josephine Azzopardi pro et noe vs Hon. Prime Minister et, where it had stated that it is not the appropriate court to determine whether or not to evict tenants. This jarred with the subsequent Portanier v Malta judgement, where the ECtHR questioned why the Constitutional Courts are abdicating their responsibility by referring applicants to another remedy instead of cutting down procedure time. It also questioned as whether the successive procedures further burdened applicants with supplementary legal costs and expenses. Following such judgement, the Civil Court went to determine if eviction was the appropriate remedy.

In this case, the defendants had another property which they could occupy and which was instead leased at the current and far higher rent, and this convinced the Court of the appropriateness of such remedy. The Court ordered the tenants to leave the plaintiff’s property within a year, ordering them to pay a €300 rent for every month until they vacate the tenement.

The Attorney General was also ordered to compensate the plaintiff by paying a sum of €15,000, covering both pecuniary and non-pecuniary damages.

It should be noted that this judgement is subject to appeal.

For further information on property law, contact Dr. Simon Galea Testaferrata or any other member of IURIS Advocates.