Perhaps the most common measure adopted by governments worldwide over the past two years has been, quarantine.

As a result of such a forceful measure, millions of people at some point or another are forced to remain confined to their homes either due to a positive swab test result or due to their close contact with someone who tested positive for coronavirus.  This measure has left several consequent ripple effects especially on employers and employees.

With employees being restricted to their homes on a daily basis, the novel of “quarantine leave” was introduced.

According to Subsidiary Legislation 452.101, quarantine leave is “leave to be granted to the employee without loss of wages in such cases where the employee is legally obliged to abide by a quarantine order confining the employee to a certain area or to certain premises as determined by the Superintendent of Public Health under the Public Health Act or by any public authority under any other law.”

Therefore, quarantine leave is not available to those who out of their own will decide to self-isolate but is only available to those who have received a formal letter by the authorities ordering them to quarantine. Additionally, the novelty of this concept is also remarked due to the fact that quarantine leave is not meant to serve as a replacement to paid vacation leave or sick leave, but is a new form of leave entitlement altogether.

Interesting are the interplays between sick leave and quarantine leave. If an individual tests positive for Covid-19, then that particular individual is to be considered as sick – therefore being entitled to sick leave from his/her employer. A similar system applies to individuals who although having initially tested negative for Covid-19, would have tested positive during their period of quarantine. When the illness terminates, if the person is ordered to remain in quarantine, then the quarantine leave regime will apply. Conclusively, only people who test negative for Covid-19 and are ordered by the Superintendent of Public Health or other authorities to remain in quarantine are eligible to avail themselves of quarantine leave, whereas those who test positive for Covid-19 avail themself of their sick leave entitlement.

The remarkable feature of this definition lies in the fact that whilst an employee is availing himself of quarantine leave, that employee has his mind at rest that he will not suffer any deduction in his wage.

The Maltese legislator has created a scenario wherein a person who tests negative for Covid-19 but is nonetheless ordered to quarantine, is afforded full protection of his wages. Yet, opposingly a person who is ordered to quarantine for testing positive for Covid-19, is not entitled to the same sort of protection.

The entitlement to sick leave is regulated under Regulation 3 of Subsidiary Legislation 452.101 which caters for a stipulated period available to an employee as sick leave for which the employee is entitled to receive his full wages. Therefore, if one considers a scenario wherein an employee avails himself of his full sick leave entitlement, and subsequently contracts Covid-19, the employee may find himself in a position wherein he does not qualify for quarantine leave and would have to avail himself of further sick leave which may result in loss of wages.

The post THE LETTER OF THE LAW: Sick Leave vs Quarantine Leave appeared first on Arthur Azzopardi & Associates.

What happens if Person A files a suit against Person B and B, following this, files a separate case against A on the same merits while the first case is still pending? Such scenario is more common than one might think and the consequences of allowing both actions to co-exist are adverse, to say the least. From a purely legal perspective, having both actions live on separately can result in conflicting judgments. The successful litigant in both cases will face difficulty in enforcing the respective conflicting judgment. Moreover, even from an administrative perspective, having two actions on the same merits is surely not the best use of the Court’s recources.

It is precisely because of this that the law affords two options. The first option (Article 792 of the Code of Organisation and Civil Procedure) consists in requesting the Court to transfer the case before the Court first seized of the matter so that it may be heard by such court (the plea of lis alibis pendens). The second option (Article 793 of the same Code) involves requesting a connection of actions.

The former option results in the second case being transferred for hearing before the first court. This avoids a situation in which two different judgments are delivered on the same merits. The raison d’etre of such remedy was explained in two recent judgments: Claudio Mangion vs Charlene Friggieri et (decided by the Civil Court First Hall on the 17th of May 2021) and Angelina sive Gina Balzan vs L-Onorevoli Prim Ministru et (decided by the Civil Court First Hall on the 4th of May 2021).

In the former case, the Court explained that having two actions on the same merits is a very serious matter due to conflicting judgments. It further explained that should such plea be upheld, both cases would be heard together as one (‘fi proċess wieħed.’) The latter judgment analysed the checklist which must be satisfied for this plea to be successful. The Court held that the two cases need to concern the same parties acting in the same capacity, both cases need to have the same subject, and both cases need to have the same legal grounds.

While the first two requirements are relatively straightforward, the third is not so easily satisfied. If the two cases concern the same parties, the same subject, but the legal ground/s are different – for example, one is based on contract and the other non-contractual – the third requirement of the plea would not be satisfied. Thus, in theory, both actions can co-exist.

This is where the connection of actions comes in. If the link between the two cases or actions is present but is not immaculate, or one of the above requisites is not satisfied, one may instead opt for this option. In such case, as explained by the Civil Court First Hall in the abovementioned Mangion vs Friggieri et judgment, when two actions are connected, two separate judgments are given. What needs to be proven in such case is that both cases are linked through a common subject and that the result of one will affect the other.

Therefore, to answer the premise question, if Person A files a suit against Person B, and B files a case against A on the same merits, the exercise that must be undertaken is to see how similar the two cases actually are. If the person, subject and claim are the same, the plea of lis alibis pendens will most likely be successful. If the merits are similar but not identical, one may instead opt for connection of cases. Ultimately, the measure adopted to determine the similarity or otherwise of the two cases is at the discretion of the Court.

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The main premise whenever discussing pre-1995 leases is that the regime regulating them is ever-changing and has been subject to countless amendments in the past. The perpetual struggle of the legislator is achieving balance between the rights of the tenant and the rights of the landlord. In a nutshell, the current situation is that pre-1995 leases which are still in effect at this point in time are automatically renewable and the rent payable does not reflect current market value. In an attempt to provide a solution, Bill 203 of 2021 (Controlled Leases Reform Bill) proposes amendments to the current regime regulating pre-1995 leases. This Bill is currently at first reading stage so if and when it is passed into law it will affect the Chapter 16, Chapter 69, Chapter 158, and the Chapter 474 of the Laws of Malta.

Proposed Amendments to the Civil Code

Out of the various articles in the Civil Code which regulate pre-1995 leases, of particular relevance is Article 1531C which provides that the  rent  of  a  residence  which  has  been  in  force before the 1st June, 1995 shall be subject to the law as in force prior to the 1st June, 1995. What the amendments propose is the addition of a proviso to Article 1531B which provides that after the Bill enters into force, Articles 1531C, 1531F, 1531G and 1531K shall not continue to apply to pre-1995 leases. Articles 1531C and 1531K will only apply in regard to the establishment of the minimum rent payable. This means that pre-1995 leases will be subject to the law as amended and not as in force prior to 1st June 1995. Therefore, the proposed amendments to the Civil Code need to be viewed in the context of the other proposed amendments.

Proposed Amendments the Reletting of Urban Property (Regulation) Ordinance, Chapter 69 of the Laws of Malta

Currently, the only way for a landlord to increase the rent of a pre-1995 lease falling within the ambit of Chapter 69 is to opt for constitutional action. While such action has proven to be successful, the procedure is repetitive and tedious. First, the landlord needs to file a constitutional application before the Civil Court (Constitutional Jurisdiction) on the basis that Chapter 69 gives the tenant protection which breaches the landlord’s fundamental right to property. The Court will then declare that it has found a breach of the landlord’s human rights and declares the protection afforded to the tenant unconstitutional. Arguably, however, it fails to provide a concrete remedy to the landlord. After obtaining such judgment, unless of course it has been appealed, the landlord would then have to file another application before the Rent Regulation Board (RRB) for eviction or for a fair increase in the rent. Despite this system being critised by the European Court of Human Rights (Portanier v Malta, 2019), the landlord is forced to jump through multiple hoops in order to have his basic fundamental human rights safeguarded.

This is why an amendment to Chapter 69 to this effect is overdue. The proposed amendment largely mirrors Article 12B of Chapter 158 of the Laws of Malta and entitles the landlord to file an application before the RRB requesting that the rent is reviewed to an amount not exceeding 2% per annum of the free and open market value of the property. The RRB will then conduct a means test of the tenant and where the tenant is found not to have sufficient means, he or she will be given five years to vacate the premises. The tenant may then apply for the Private Rent Housing Benefit Scheme and the additional rent is paid by the Housing Authority according to the means bracket which the tenant falls under. Furthermore, when such an application is filed before the RRB, the Housing Authority shall be notified and shall have the right to participate in the proceedings. The tenant shall also be entitled to benefit from legal aid in such proceedings.

Proposed Amendments to the Housing (Decontrol) Ordinance, Chapter 158 of the Laws of Malta

Given that Article 12B of Chapter 158 was already introduced back in 2018, the proposed amendments to this law are less voluminous when compared to Chapter 69. With regard to Chapter 158, the legislator is also proposing that the tenant be entitled to benefit from legal aid in proceedings under Article 12B. Presently, the law provides that both landlord and tenant are entitled to such aid. This proposed change is recognised as an attempt by the legislator to avoid any conflict of interest for the Housing Authority which would be providing such aid.

Interestingly, with the proposed amendments the legislator proposes the deletion of Article 12B(11). Sub-article 11 provides that when the landlord obtains a judgment based on the lack of proportionality between the value of the property and the rent receivable by him or her, the landlord cannot proceed with evicting the tenant without first availing himself of the procedure of Article 12B. This means that after obtaining a judgment by the Constitutional Court declaring a breach of his fundamental human rights, the landlord still cannot enforce this judgment before the RRB. Being the subject to various consitutional cases, Article 12B(11) has been declared by the Constitutional Court to be in breach of the landlord’s fundamental human right to property (Robert Galea vs Avukat Ġenerali et, Constitutional Court, 6th October 2020). Therefore, the proposed deletion of this sub-article may be seen as a reaction to such judgments which declare this to be unconstitutional.

Proposed Amendments to the Mediation Act

The proposed bill also seeks to delete Article 34 of the Mediation Act which provides for mandatory mediation prior to a suit before the RRB being initiated. With Article 34 coming into force only a few months ago, should this proposed amendment be successful it is safe to say that mediation in rent proceedings will be shortlived.

What impacts will these amendments have, if implemented?

It is arguable that the most substantial amendment is that regarding Chapter 69 of the Laws of Malta. As discussed, the amendment proposed is almost identical to the current Article 12B of Chapter 158. When this is taken in the light of the latest jurisprudence of the European Court of Human Rights on the matter, particularly, Cauchi v Malta (decided on the 25th March 2021), one is more prone to take a more skeptical view of these amendments.

This is because, in this judgment, the ECHR held in no uncertain terms that:

‘In view of these considerations, the Court cannot accept that Article 12B was designed to deal effectively and meaningfully with the issue of the disproportionate interference arising from the applicable rent laws, which has already been recognised by the domestic courts […] Without prejudice to such future findings, in view of the above‑mentioned considerations, as the situation stands today, the Court cannot confirm the effectiveness of this remedy in circumstances such as those of the present case.’

Therefore, while these amendments are undoubtedly a step forward, their true effectiveness remains to be seen. With the ECHR pronouncing itself so clearly on Article 12B, which the proposed amendments to Chapter 69 mirror, the answer seems to lean towards the negative. Indeed, it is more likely than not that this amendment, albeit still in the metaphorical legislative womb, is doomed from the start.

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The right to property is protected by the European Convention on Human Rights; therefore, rendering it also a protected by our Constitutional courts. In principle, this means that no one may forcefully take one’s property. Naturally, as with most other laws, there exist certain exceptions (such as cases of expropriation with just compensation). But with most cases, one can enjoy his property without State interference.

The right to property has taken Malta by storm in the last few years. A large number of Maltese landlords (thousands) have suffered the legislative labyrinth created by the continuous development in our rent laws. Two laws are the main culprits: contracts of lease which predate 1995 (under Chapter 69 of the Laws of Malta) and temporary emphytheutical concessions converted into permanent leases (Chapter 158 of the Laws of Malta).

In brief terms, Chapter 69 (the Reletting of Urban Property (Regulation) Ordinance) and Chapter 158 (Housing (Decontrol) Ordinance) had been introduced and amended in order to protect the interest of the general public at the time of their promulgation, by creating protected ‘leases’ that could not be terminated. Basically, on the expiration of the period of occupation agreed to between the parties, the lease did not end, continued, and the landlord could not refuse to renew it from year to year. He had to remain in the lease, whether he liked it or not. To add insult to injury, both laws also placed enormous limits in how rent may increase from year to year – in most cases, rent could only increase in proportion to the yearly COLA increases (which could literally mean an increase of for example five euro every three years). We therefore have beautiful houses in Valletta being rented for €209 a year, properties that on the free market may easily fetch €2000 a month. These laws meant that landlords could neither increase the rent to reflect the market prices nor take back their property.

In time, landlords started to resort to our courts of constitutional jurisdiction to obtain a remedy. The number of these cases are plentiful today, and usually (with some exceptions) go through the following steps:

An Application is filed in court

The court application primarily consists of the landlord’s claims and the remedy that is being requested, and it is made against the tenant and the State Advocate (as legal counsel to the State). The remedies requested are usually two: one against the State Advocate, consisting of a demand for adequate compensation, and another against the tenant, consisting of a declaration that the lease in question is affected by a law that is in violation of Article 1 Protocol 1 of the European Convention of the Human Rights.

At times, an attempt is made to evict the tenant in order to regain back the peaceful possession of the property. This, however, has proven to be a legal tug-of-war between domestic courts and the European Court of Human Rights, with the Maltese courts still very reluctant to directly evict tenants, instead opting to merely declare that the tenant would no longer be able to rely on the articles at law in question to remain in the lease. After that, the landlord would have to file a second lawsuit, and seek eviction before the Rent Regulation Board.

During the hearing of the case, one must usually provide documentation proving his or her title over the property, provide evidence as to the duration of the ‘protected lease’, and provide evidence as to the rent received throughout the years.

The Respondents will reply to the case

The respondents (the tenant and the State Advocate) will file their reply, stating why in their view the court should not accede to plaintiff’s request. Usually, the parties will attempt to make the argument that these old rent law manage to create a balance between the rights of the landlord and those of the tenant, and that therefore, they are not in breach of the fundamental right to property. The tenant will also usually attempt to exculpate himself/herself, stating that he or she is not responsible for the promulgation of laws, and so, any declaration that a law is in violation of the European Convention on Human Rights is not to affect him, and that he should not be burdened with the costs of the case

A Date for the First Sitting is appointed.

A date is appointed for the first sitting. At times, this proves to be an important sitting because any preliminary objections are raised and addressed — objections which are sometimes capable of putting the proceedings at a halt or even dismiss the case at once.

An Architect is appointed

Usually then, plaintiff (the landlord) requests that a court-appointed architect is engaged in order to give an indication of the rental market value of the property in question through the years. The architect is responsible to draw up a report highlighting various important information about the property, such as whether there were any changes made, any deterioration taking place, and so on. This aids the court in two manners: it allows to see whether there is a substantial discrepancy between the rent received by the landlord and that available on the market, and what kind of compensation would be suitable to remedy the harm suffered by the landlord in view of these rent laws, if in the circumstances of the case they are deemed to be in breach of the landlord’s fundamental human rights. In nearly all the cases, the expenses for the services of the court-appointed architect is provisionally and initially paid by the plaintiff (the landlord), who will only publish his/her findings after having been paid.

Parties are allowed to produce witnesses, bring evidence, and ask questions to the court-appointed architect.

Parties may bring witnesses, produce evidence and submit in court any relevant proof. Thereafter, the parties will be given the opportunity to make final submissions.

Judgment

A judgment is then given by the court. The court will state whether there have been any violations of the landlord’s human rights, and if so, it will liquidate the amount of compensation to be paid by the State Advocate to the landlord. Never there has been a case where the tenant was obliged to pay compensation, and it is also extremely rare for the tenant to be condemned to pay the costs of the case. There have been limited cases in the past where eviction was also requested and then considered as one of the remedies to be given; however, in the past years, our courts have mostly limited themselves to declare that the tenant would, from the date of the judgment, no longer be able to rely on that law declared to be violating the landlord’s human rights to remain in the property leased. Then the plaintiff would have to file another case before the Rent Regulation Board to seek eviction, unless of course the parties find some sort of agreement.

The parties can then appeal before the Constitutional Court.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja at carlos@azzopardilegal.eu.

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The Czech proverb “A good neighbour increases the value of your property” is perhaps one of the most relatable proverbs when considering the increasing number of condominium accommodation that is available on the market today.

The Condominium Act regulates situations where the respective owners of separate units within a building or group of buildings also enjoy rights of ownership or the enjoyment of the common parts together with the other owners, known as condomini.

The Common Parts are most commonly defined in the deed of acquisition of the property, and unless the contract states otherwise, the following are considered to form part of the Common Parts, even if one or more owners do not make use thereof:

The entrance doors, the lobbies, corridors, the stairwells, the courtyards, the gardens, the airspace above the whole property and in general, the land on which the building is constructed, the foundations, the external walls, including the common dividing walls with neighbouring tenements, the roofs, the shafts, the stairs all the other parts of the property which are intended for the common use.  As well as, all  facilities intended for the common use, such as the  parts  used  as  a  reception  and  as  a  common washroom ,the parts used as a porter’s lodge, for the  central  heating  equipment,  lifts,  wells,  cisterns,  aqueducts,  sewers,  drainage pipes,  all  installations  for  water, gas,  electricity, heating  and  similar  services  up  to  where  the  said installations branch off to the exclusive property of each owners, and works, installations and objects of  whatever  type  intended  for  the  common  use  or benefit.

Why go through the trouble of registering a condominium?

The answer is simple: not all of us are lucky enough to have a good neighbour.

The registration of a Condominium provides a mechanism for the better administration of the common parts, through the appointment of an administrator (being either a condominus or a third-party) who shall represent the condominium in all its affairs, and is entitled to act on behalf of the condominium, including to claim payment from any owner of his share towards the common expenses.

Once the condomini decide to register their condominium, they may start the process by compiling the documents to be submitted to the Land registry, initially by ordering the land registry site plan, and also by the drawing up of the Condominium Rules which require the approval of a two-thirds majority of the units represented during the meeting.  The condominium rules are  to be signed by all those present at the meeting on each page as well as in table format on the last page, including unit number, owner’s name, identity number and signature.  All this with hope of reducing the possible conflicts arising with one’s neighbour.

In larger condominiums, co-owners may opt to appoint multiple or joint administrators the manage the condominium in a collective manner, however only one may be registered with the Land registry.

The condomini shall then record the  agreement reached, whether it was for the appointment of the administrator or the drawing up of the rules by virtue of a resolution signed by the co-owners present and the proxies’ of the absentees.

Upon drawing up of such rules establishing the use of the common parts and the apportionment of expenses in connection with the common parts, the administrator shall indicate using the relevant form whether he would be registering a first registration, change of administrator or re-appointment of administrator and a separate form shall also be submitted to the land registry to file the rules drawn up.

Certain alterations or innovations to the common parts require the unanimous consent of all the condomini to take effect, such are those  which  change  the  aesthetics  and  decor  of  the condominium, those which seriously affect the use or enjoyment of any common part by any of the condomini and those which may prejudice the stability or the security of the building.

On the other hand, alterations or innovations which bring about an improvement or the more comfortable use or the better enjoyment of the common parts, such as the widening of the entrance door, the installation of a lift, the installation of a hall-porter system and the  conversion  of  a  yard  into  a  garden  or  into  an internal parking space shall be valid if approved by a number of condomini representing not less than two-thirds of the units represented during the meeting.  The same threshold must be met when taking other decisions such as the removal of the administrator, the approval or amendments of the rules and the inter alia, the undertaking of extraordinary repairs.

Unless specifically requiring a higher threshold as indicated in Chapter 398, other decisions shall be valid if approved by a simple majority of the units represented during the meeting and subsequently such decisions shall be binding on all condomini.

The rules shall also provide the applicable procedures for the implementation of certain decisions concerning the common parts; such as the making of alterations to or innovations in the common parts which bring about an improvement or the more comfortable use or the better enjoyment of the common parts such as the installation of a lift.

It is advisable for any prospective buyer to review the terms of the proposed deed of acquisition to ensure that there are no anomalies or irregularities and if a condominus is not satisfied with any matter which concerns his rights or obligations vis a vis the enjoyment or use of the common parts, he may in certain cases refer the matter to arbitration.

Should you require further assistance, including when facing issues with owners who remain in default of their contribution to the condominium you may contact any member of our firm.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Rebecca Mercieca at rebecca@azzopardilegal.eu.

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The Christmas of 1843 was part great and part horrible for the good old Charles John Huffam Dickens, commonly known as Charles Dickens. On one end, he published the ever so famous ‘Christmas Carol’, selling out six thousand copies in just one week. On the other hand, Dickens was immediately a victim of pirated editions, aided by the often complete lack of international copyright regulation and England’s reluctance to enforce copyright laws in general. He ended up spending more money in legal battles than he was making from the book itself.

Today, copyright laws are much tighter, and it is unlikely for modern authors to face the same holiday misfortunes.

This anecdote is evident of an irrefutable fact: Law literally affects everything, even Christmas.

The Game Act 1831 was an Act of Parliament in the United Kingdom which was passed to protect game birds by establishing a close season when they could not be legally taken. It is an offence to kill or take any game, or use any dog, gun, net or other engine or instrument for the purpose of killing or taking any game, on a Sunday or on Christmas Day. If one is to indulge in excessive meaty food, he is to acquire the food on a different day.

In fact, it is often stated that there was one Christmas in which eating mince pies was illegal, since it fell on a legally-mandated day of fasting.

A request for waiver of this rule was sternly refused by English Parliament:

“Whereas some doubts have been raised whether the next Fast shall be celebrated, because it falleth on the day which heretofore was usually called the feast of the Nativity of our Saviour. The Lords and Commons in Parliament assembled doe order and ordaine that publique notice be given that the Fast appointed to be kept on the last Wednesday in every moneth ought to be observed until it be otherwise ordered by both Houses of Parliament: And that this day in particular is to be kept with the more solemn humiliation, because it may call to remembrance our sinnes, and the sinnes of our forefathers, who have turned this Feast, pretending the memory of Christ into an extreame forgetfulness of him, by giving liberty to carnall and sensual delights, being contrary to the life which Christ himself led here upon earth, and to the spiritual life of Christ in our souls for the sanctifying and saving whereof Christ was pleased both to take a human life, and to lay it down again.”

One would also be advised to proceed with caution before ringing doorbells and sing carols, for it is illegal (even under Maltese Law) to ring the bell of any other person’s house or building, or to, at night time, disturb the repose of the inhabitants by rowdiness or bawling, or in any other manner.

In England, back in the 17th century, Puritan laws required that stores and businesses remain open all day on Christmas, and town criers walked through the streets on Christmas Eve calling out “No Christmas, no Christmas!” They believed Christmas was used as an excuse for drunkenness, promiscuity, gambling and other forms of excess.

A Popular Royalist ballad written in 1646 fully captured the feeling at the time:

“To conclude, I’ll tell you news that’s right,
Christmas was killed at Naseby fight:
Charity was slain at that same time,
Jack Tell-truth too, a friend of mine,
Likewise then did die, roast beef and shred pie,
Pig, Goose and Capon no quarter found.
Yet let’s be content, and the times lament,
you see the world turned upside down.”

On the Restoration of King Charles II in 1660, the traditional celebration of Christmas was also fully restored.

Malta, being predominantly Catholic, hardly ever faced any attempts from law makers to ban anything Christmas, for very few would even dare to prohibit catholic celebrations of any kind. The mass reaction of the Maltese people in year 1798 when the French attempted to restrict Catholic practices is a good enough deterrent.

However, Christmas Day does not continue to be without regulation, but these times it is to ensure that the day may continue to be celebrated. The first court vacation (on the end of what is known as the Victory session) starts on the seventeenth of December to the sixth of January inclusively. The 25th of December is officially a paid public holiday (Chapter 252 of the Laws of Malta), and the 26th December of this year is officially declared to be a bank holiday (Subsidiary Legislation 371.07). Catering establishments are normally permitted to open until 1:00am, but may remain open for business until 4.00 a.m. of the morrow on Carnival days, Easter Saturday, Christmas Eve and New Year’s Eve.

Today, the law seeks not to prohibit Christmas, but rather to promote it, as long as things are done in moderation. Indeed today, our law is very harsh on drunk drivers, and this rightly so.

So enjoy these holidays, but do not drink and drive. Ultimately, Christmas will always be as long as we stand heart to heart and hand in hand.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja on carlos@azzopardilegal.eu.

The post Christmas and the Law appeared first on Arthur Azzopardi & Associates.

The two and a half feet or the seventy-six-centimetre rule, (in Maltese parlance referred to as “ir-regola taż-żewġ piedi u nofs”), is imposed by article 439 of the Maltese Civil Code.

This article states that, “It shall not be lawful for any person to dig in his own tenement, any well, cistern or sink, or to make any other excavation for any purpose whatsoever at a distance of less than seventy-six centimetres from the party-wall.”

The importance of this article is huge when it comes to the development of adjacent property – when such development involves in any manner the digging or excavation works on an adjacent land. Time and again our courts have taken a rigid stance to protect the effects that this article imposes.

Digging within 76cm, from the dividing wall, is absolutely prohibited – no exceptions. The term digging, includes all excavation works (of any nature), such as trenching and unearthing of material. The material that stands (from surface downwards) within 76cm of the party must remain untouched. The moment one tries to meddle with this protected material, s/he falls foul of this rule.

The scope of this article is by and large the protection of the next-door tenement or property – it seeks to protect the underlying pediment and what surrounds it within the imposed legal distance.

Now, judgments have been consistent in the sense that they have declared the absoluteness of the prohibition that is set out in article 439. In this sense, the court has underlined the fact that there are absolutely no exceptions to this rule. By example, even if one had to satisfactory prove that excavation within the 76cm distance, would not be of prejudice to the adjacent tenement, such evidence would not antidote the absolute prohibition that is set out by the law.

As held in the judgment bearing the names A&N Properties Limited et vs. Charles Busuttil:

“Jidher ċar, mill-kliem tal-liġi, li l-projbizzjoni ta’ tħaffir f’bogħod ta’ anqas minn 76ċm mill-ħajt diviżorju hija jedd reali, stabbilit għall-vantaġġ ta’ fond ġa żviluppat fuq fond li għad irid jiġi żviluppat, sabiex sid dan tal-aħħar ma jitħalliex iħaffer fil-blat f’bogħod anqas mid-distanza msemmija (artikolu 400 (1) tal-Kap 16). Din il-projbizzjoni hija ġenerali (Micallef vs. Debono – P.A. – 25 ta’ Novembru, 1910); Giovanni Coleiro pro et noe vs. Domenico Camilleri et P.A. (WH) – 18 ta’ Frar, 1936) u assoluta (“Eric Fenech Pace et vs. Bajja Developments Limited” P.A. (TM) – 14 ta’ Ottubru, 2004); “Salvatore Grixti et vs. George Schembri” A.Ċ. – 12 ta’ Ġunju, 1969 – Vol. XLIII.ii.283), mingħajr ebda kwalifika jew eċċezzjoni, la għall-każ fejn il-blat fid-distanza msemmija jkun dgħajjef, lanqas għall-każ fejn tqattigħ f’dik id-distanza effettivament ma jikkaġuna ebda ħsarat jew danni lill-ġar.”

There are some judgments that stated otherwise, but the prevalent judgments have moved along these lines.

Judgments have declared that this article creates an easement “servitude” in favour of the adjacent tenement – this is a real right attached to the immovable property. Servitudes are rights attached to immovables; they crop up where tenements are literally being served by another – they are rights established to the advantage of a tenement over another tenement. Simply put, the land being developed is subject to this prohibition. This servitude is of character, because it is of a prohibitory nature.

Like other servitudes, this right can be renounced to – the mode of renunciation must necessarily be done through the means of a public deed. When it comes to renunciation of such rights, there has been some inconsistent judgments. Some court decisions, seem to have accepted that this right given to adjacent owners, may be renounced to implicitly/verbally or even though informal agreements such as a private writing. Other judgments have stressed that such right may only be renounced by virtue of a public deed – given its real right feature.

As held, the law seeks to protect the neighbouring tenement from damages by excavation works. Hence if the legal distance is breached, by law, any damages that are sustained by the adjacent tenement, are automatically presumed to have occurred by result of such breach. In such case, it would be up to the adjacent developer/owner to prove that such damage occurred was not the result of such excavation works.

In conclusion, breaching the two and a half feet rule means trouble to the perpetrator, unless one is authorised to so through the correct means. When this happens, respondents to such cases are by and large condemned to pay the resulting damages, to restore the land as it was before the excavation works/or alternatively to pay a compensatory amount to the adjacent owner.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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For one to make a development, one has to apply for a planning permit.

Planning applications are brought before the Planning Board, which is tasked by law (article 72(2) of Chapter 552 of the Laws of Malta – the Development Planning Act) to determine the merits by taking account of the plans submitted, the planning policies, regulations made under planning law and any other material consideration, including surrounding legal commitments, environmental, aesthetic and sanitary considerations, which may be relevant. The Planning Board shall also consider representations (known as ‘objections’) made by third parties, as well as the representations and recommendations made by board, committees and consultees so appointed in terms of the law.

On the other hand, the Planning Board is generally not required to verify the suitability of the title which the applicant purports to have, nor shall it consider issues which are ‘private’ between the parties. Indeed, the law states (article 72 (1), Chapter 552) that any development approved shall be without prejudice to third party rights and shall not in any manner constitute or be construed as a guarantee in favour of the applicant as to the title to the property. Therefore, theoretically speaking, an application may be one that satisfies all planning considerations and so the application is approved. But that does not mean that the applicant is free to initiate his development. Any rights belonging to third parties (for instance, the right not to have windows abutting onto one’s airspace) remain, and are not nullified by the issuance of the planning permit. A planning permit is not the beginning and the end of what is required for one to build. Any third party rights (either emanating out of contract or from the provisions of the Civil Code, among others) still need to be respected. So for instance, you will find many approved applications having apertures which are perfectly compliant with planning laws, but which create illegal servitudes unto third parties, and can thus be challenged in a court of law. Simply put, planning law takes account of planning issues, while third party rights are the exclusive competence of our courts.

This does not mean that an applicant may freely make misrepresentations as to his rights on a property. According to article 71 (4) of Chapter 552, an applicant shall – in his application – certify that: (i) he is the owner of the site or that he has notified the owner of his intention to apply, this by means of a registered letter, shall also certify that the owner has granted his consent to such a proposal; or that (ii) he is authorised to carry out such proposed development under any other law or through an agreement with the owner. So technically speaking, one is not required to be the owner to apply for a permit, as long as the owner has consented or as long as he is allowed by law to carry out such a development. This for instance allows prospective buyers on a promise of sale agreement to apply for a permit in their own name.

One however must not lie; a permit issued on the strength of an untruthful declaration may possibly be revoked through the procedure established in article 80 of Chapter 552 of the Laws of Malta.

This initial declaration of ownership/consent in the application is very important. Despite the fact that it has been stated time and time again that all planning permits shall be issued saving third party rights, this did not mean that the Planning Authority was free not to verify that consent was actually granted when the applicant was not the owner. Recently, in the judgment of Kingsway Palace Company Limited vs l-Awtoritá tal-Ippjanar et, the Court of Appeal described the duty of the Planning Authority in this respect:

Hu minnu illi kwistjonijiet ta’ kontestazzjoni fuq titolu mhux fil-kompitu tal-Awtorita jew it-Tribunal li jikkunsidrahom u jiggudikahom. Pero dan ma jfissirx illi fejn applicant qed jissottometti li ghandu permess tas-sid moghti permezz ta’ ftehim kontrattwali u ghalhekk mhux mehtieg il-kunsens tas-sid ghall-izvilupp dan ma ghandux jigi mistharreg u dan semplicement ghax hi l-ligi tal-ippjanar stess li taghti dan id-dritt lil applikant. It-Tribunal bhall-Awtorita ghandu l-obbligu li jqis din is-sottomissjoni.

Jekk prima facie jirrizulta dan il-jedd b’mod car u bla kondizzjonijiet jew limitazzjonijiet, allura l-Awtorita u t-Tribunal ghandhom l-obbligu li jiddeciedu l-applikazzjoni fuq ilmertu taghha mill-lat ta’ ippjanar. Wara kollox l-ghoti ta’ permess mhux garanzija ta’ dak li l-Awtorita u t-Tribunal qiesu bhala prova ta’ titolu fuq bazi prima facie biss. Li ma ghandux jaghmel it-Tribunal hu li jinterpreta jew iqis jew inkella jinjora kwistjonijiet ta’ natura civili li jitqajmu u li fuqhom hemm dizgwid bejn il-partijiet specjalment fejn hemm proceduri legali gia mehudin.”

Once the law made it a condition for the non-owner to seek consent from the owner, the Authority has to consider legal issues, at least from a prima facie perspective, to verify whether there is the required consent.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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Article 1424 of the Civil Code obliges someone selling something to warrant the thing sold against any latent (hidden) defects which render it unfit for the use for which it is intended, or which diminish its value to such an extent that the buyer would not have bought it or would have tendered a smaller price had he knew about those defects.

If the purchase discovers a ‘latent defect’ he may institute what is called the ‘actio redhibitoria’ to rescind the sale, and have the price repaid to him. The defects which may lead to successful action may be varied; from a defect in the title of the property, to a fault in the thing sold that renders is unfit for use.

The question is: if the purchaser discovers that a house he had just bought is ‘haunted’, can he opt to rescind the purchase?

Beyond any questions of how the plaintiff would provide evidence as to the existence of ghosts in the house purchased, this issue was actually subject to a number of court cases in Malta in the past.

The legal issues surrounding haunted houses go way back. The Greek philosopher Diogenes the Cynic, who died in 323 BCE, was recorded by Cicero as arguing that interested buyers should be told of flaws, including “an unhealthy atmosphere”, leading one to believe that it was normative to reveal a house to be haunted, when selling.

Even in Medieval times, a redhibitory action was admissible if it was proven that the purchased house was occupied by spirits.

In the US, the judgment of Stambovsky v. Ackley, delivered in 1991 by the Supreme Court of New York, Appellate Division, is studied by every student reading law. In this case, plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists.

The court’s fine humour cannot go unmissed:

“While I agree with Supreme Court that the real estate broker, as agent for the seller, is under no duty to disclose to a potential buyer the phantasmal reputation of the premises and that, in his pursuit of a legal remedy for fraudulent misrepresentation against the seller, plaintiff hasn’t a ghost of a chance, I am nevertheless moved by the spirit of equity to allow the buyer to seek rescission of the contract of sale and recovery of his down payment.”

In the interest of avoiding such untenable consequences, the notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest.”

The court then moved to seriously discuss the issue at hand. It stated that a seller must disclose that a house has a reputation for being haunted, because such a reputation impairs the value of the house:

“In the case at bar, defendant seller deliberately fostered the public belief that her home was possessed. Having undertaken to inform the public at large, to whom she has no legal relationship, about the supernatural occurrences on her property, she may be said to owe no less a duty to her contract vendee.”

It acceded to plaintiff’s request to rescind the sale.

One of the judges (Judge Smith) disagreed, stating in his dissenting opinion that:

“Finally, if the doctrine of caveat emptor is to be discarded, it should be for a reason more substantive than a poltergeist.”

The leading case in Maltese jurisprudence is that in the name of Alessandro Portanier vs Giovanni Grima, decided on 24 March 1939 by the Court of Appeal.

The facts of the case were as follows: Plaintiff had entered into a promise of sale with respondent, to sell him (among other things) a house in Senglea (88, Strada Crocifisso), for £200. Respondent did not wish to sign the final deed of sale, and therefore plaintiff instituted an action in court, requesting that the Court orders respondent to appear on the final deed of sale.

Respondent stated that after having signed the promise of sale, he got to know that the house he was about to purchase had a material defect, consisting in the presence of ”waħx, fatati u fenomeni spiritiċi” (ghosts and spirits). He further stated that plaintiff had known that ghosts and spirits appeared in this house, and that sought to hide that fact. He further stated that these ghosts would render the house inhabitable and incapable of being rented, and that therefore the agreement between the parties should be rescinded.

The Civil Court, First Hall had quoted celebrated Italian author, Troplong, who had stated that nowadays, it is ridiculous to suggest that a house is ”abitata da spiriti e da fantasmi”. The Court had further noted that there are other authors who did admit the possibility that a house could be occupied by ghosts, but nevertheless, claimaint would have need to prove that these would be of such extent as to constitute evidence “che il godimento sia realmente turbato dell’avverarsi di fatti obiettivi, rilevati e controllati dai pu person senza prevenzione e passione”.

The Civil Court, First Hall had concluded that respondent failed to prove this fact, and therefore ordered him to appear for the final deed of sale.

Respondent appealed.

The Court of Appeal stated that respondent’s argument was based on the presupposition that the house was indeed haunted. This – the Court noted – had not been proven. The Court noted that while some witnesses did mention what would be considered as abnormal occurrences, they were not such to exclude a natural explanation of same, or that they are not simple (sic.) ”ġejjin minn xi biża’ ta’ nisa jew xi immaġinazzjoni alterata ta’ xi xhud, speċjalment jekk xurban”.

Therefore – the Court of Appeal concluded – respondent’s argument could not be upheld. It then confirmed the judgment of the first court, and ordered respondent to appear on the final deed of sale, and to pay the costs of the proceedings.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja on carlos@azzopardilegal.eu.

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The Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, is the foundation of the procedure used by our Courts in civil cases. At its core, it provides for how, when, and where applications and replies are filed, how hearings are conducted, how witnesses testify, and fundamentally, how the procedural timeline of a case filed before our courts will progress from start to finish. In the past few days, two Bills were presented to Parliament, both of which seek to amend Chapter 12 of the Laws of Malta. They each tackle a specific area of civil procedure, and endevour to make it reflect present realities and solve current problems faced by our courts.

Bill no. 168 of 2020

Bill no. 168 will officially allow for one to be virtually present in court through live video conferencing links. This can be done in any cause – either by application of one of the parties, or even through the court’s own motion. This procedure is triggered as follows: after hearing representations from the parties, the court may direct that any party of witness in a location which is not the court itself (the ‘remote location’) is to be treated as being actually present in court. This can be the case for the entirety of the proceedings or even proceedings which are incidental to the main proceedings.

The fact that the Court can declare this ex officio and need not rely on the application of one of the parties shows an inclination on the part of the legislator to reduce the number of people present in the courtroom. In the present Covid-19 circumstances, this seems like a necessary step, with the long-term effects of this measure on the efficiency of court proceedings yet to be seen.

This does not mean that such a system does not present new challenges. One may argue that the ‘theatre’ and perhaps even the intimidation of the courtroom is precisely what prompts witnesses to testify truthfully, and that the testimony of a witness may vary when he or she is testifying from the comfort of his or her own home or office.
The Bill caters for these challenges, by providing for certain safeguards.

The order of virtual presence through videoconferencing is not be given by the court in question unless it is satisfied that the persons in the remote location have all the necessary facilities to enable them to see and hear the court and for the court to see and hear them. Nor can the court allow the person to testify from the remote location if it would be unfair to one of the parties, or if it would be contrary to the interests of justice to do so. In the last two provisos, one perceives that the court is allowed a substantial amount of discretion in deciding whether it should give such order. When this is coupled with the fact that the court may give such order of its own motion, it is evident that the legislator seeks to allow the courts to tackle the matter on a case-by-case basis. However, if the Court in question decides not to give such order, it needs to provide its reasons for its refusal.

Bill 169 of 2020

The aim of this Bill is to primarily reduce the backlog of cases before the Court of Appeal by limiting hearings only to the cases where it considers it necessary. In view of the fact that typically, cases before our courts are based on a combination of written applications and replies, and oral hearings, conceiving a system before the Court of Appeal which eliminates oral hearings entirely is surely a drastic change. This measure will be accompanied by a reduced timeframe for the payment of security for costs in respect of appeal. These two measures seek to fast-track the proceedings as much as reasonably possible. It should be noted from the outset that this new appellate court procedure will not apply to cases before the Constitutional Court, which shall still be appointed for oral hearing. Furthermore, the Bill will apply to judgments subject to appeal which are delivered after the Bill is enacted and in force.
Bill 169 of 2020 stipulates a longer limit for the filing of appeal and replies, extending the limit from 20 to 30 days. The reason provided is that a longer limit will allow ‘written pleadings to be better prepared.’ This Bill essentially provides for an overhaul in the proceedings before appellate courts. It is thus useful to examine how the new procedure will take place, step-by-step.

All proceedings before an appellate court will be conducted in writing and the first step in the process is to file a note of appeal within 10 days from the date of the judgment appealed. This precedes the actual filing of the appeal application and is an entirely new requirement, the failure of which precludes the party from filing the appeal, rendering the judgment of the lower court res judicata. Then follows the application for appeal which needs to be filed within 30 days from the filing of the note of appeal. A reply to the appeal application needs to then be filed within 30 days. This is followed by any cross appeal and the answer thereto.

The appellant may, within 5 days of being notified of the reply, plead the court to authorise him to file a rejoinder addressing only the points of fact or law which were raised for the first time in the reply. Should the Court allow the filing of such rejoinder, it shall be filed within a period not exceeding 30 days from the date of the decree authorising the filing of the rejoinder.

Provided that the Court does not require further clarifications, this rejoinder would mark the closing of the written pleadings, following which the Court of Appeal will proceed to judgment. The security of costs for all appeals will need to be deposited by not later than 3 months from the filing of the appeal, the failure of which would render the appeal abandoned. At present, the deadline for the deposit of the security of costs must be produced and deposited at least one day before the hearing of the appeal. Given that this Bill is intended to remove oral hearings from the process, it is understandable that the legislator needs to provide a more objective timeframe for such deposit.
It is interesting to note how the Bill considers the written pleadings to be the application and reply themselves and does not provide for a note of submissions which would replace the oral hearing. This means that any application and reply filed before an appellate court need to be comprehensive to the extent that, as much as possible, no further clarifications would be required.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on info@azzopardilegal.eu.

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