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 beneficial impacts of modern technology do not come as a hard nut to crack for they are easily recognised and generally accepted by society. What is often bypassed however, is the question of the price paid by the effects of technological advancements and whether these are dwindling the boundary between family life and work life at the expense of our well-being. This statement finds its own special footing within the ambit of employment since employees are seemingly only a few clicks away from their employer irrespective of whether it is the weekend, whether they are on holiday or whether it is 10pm and way out of their working hours.

The nature of the world of work continues to evolve with the growing use of smartphones, tablets, and laptops by employees. With synced work mailboxes into personal smartphones, the growing use of instant messaging, and now also through the heightened use of video conferencing portals and interactive meetings, the employee is barely given time to switch off from his working environment.

This reality is what has sparked debates between European Union Member States concerning the infamous right to disconnect. Apart from the remarkability of this right in its’ own merits, one should not disregard the fact that this Recommendation was pushed for by a Maltese Member of the European Parliament. Following the adoption of a parliamentary resolution on the 21^st of January 2021, recommendations have been made to the European Commission with the prospect of issuing a directive which will see the right to disconnect serve as a foundational right to all citizens of the European Union. The wording of the resolution highlighted the problem of being constantly connected along with the high demands of the workplace together with the rising expectation that workers are reachable at any point in time can negatively impact employee’s rights, and their physical and mental health and well-being.

There is a difference between working time, during which an employee must be at the disposal of the employer, and contacting an employee outside working time, where an employee has no obligation at all to be at the employer’s disposal. It can be drawn that the main purpose behind the introduction of the right to disconnect is aimed to safeguard the employee’s health with special focus on protecting employees from the psychological risks of anxiety, depression, burnout, and technostress.

The situation is not the same in all Member States. Under the current legislation and the case-law of the Court of Justice of the European Union, employees are not required to be available to the employer on a 24/7 basis and without interruption whatsoever. Notwithstanding, the right to disconnect is still absent from Union law, and the situation amongst Member States varies widely.

As proposed, the right to disconnect enables employees to refrain from engaging in any sort of work-related tasks, activities, and electronic communication including phone calls and emails, at any time falling outside of their working time. This right shall also extend to rest periods, vacation leave, maternity, paternity or parental leave as well as public holidays. With the protection of the right to disconnect, the employee will need not fear that he will face adverse consequences for having failed to respond to an email or answer a phone call whilst outside working time. As a matter of fact, the proposed law seeks to underline this particular point – that employers should not expect, let alone require workers to be directly or indirectly available or reachable outside their working time. This restriction shall also extend to co-workers who should likewise refrain from contacting their colleagues outside the agreed working hours for work-related purposes.

It must be pointed out that this law is at present still in its recommendation stage to the European Commission and as a result has no force of law within Member States of the European Union. It is only once the prospected directive is conclusively adopted by the European institutions that it finds its applicability within the local context. That said, the crux shall ultimately rest in the hands of the Maltese legislator to transpose the wording of the directive into Maltese law. Nonetheless, the introduction of the right to disconnect is a hopeful step towards restoring the boundary between family life and work life and it is set to greatly influence the current functioning of most workplaces.

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The terms presidential pardon or prerogative of mercy, commonly referred to in Maltese as proklama or maħfra presidenzjali, have in the past couple of months become buzzwords in Malta. As the name itself suggests, a presidential pardon implies clemency or forgiveness. It is an extremely powerful discretionary tool, regulated by article 93 of the Constitution of Malta, vested in the executive arm of the State, specifically the Head of State. A presidential pardon empowers the President, through Cabinet, to assume powers ordinarily vested in the judicial organ of the State. In other words, this powerful tool usurps the functions of the courts of criminal jurisdiction.

Generally, when granted, a presidential pardon either exonerates, conditionally or unconditionally, an individual from criminal prosecution for his/her involvement in a crime or else discontinues the effects of a criminal conviction by, for instance, ordering that an inmate serving an imprisonment sentence be immediately released from prison. The President may also, in terms of article 93 of the Constitution, substitute a less severe form of punishment for any punishment imposed on any person for any offence, at his discretion or owing to a change in law where the relative punishment would have been decreased.

Many a times, presidential pardons are granted in exchange for inside knowledge or information that would help the investigative authorities and prosecutorial bodies secure the convictions of the true masterminds of the crime concerned. Such pardons are generally subjected to a number of conditions, the standard one being that the individual pardoned has to give State evidence and reveal the whole truth in Court and moreso cooperate fully with the prosecution in arriving at the truth. If the person does not abide by any of these lawful conditions, the pardon may be revoked.

Interestingly, contrary to what many might think, while a request for a presidential pardon is on paper addressed to the President, the latter is actually compelled to act on the advice of the Cabinet, generally the minister responsible for justice, prior to granting a pardon. In fact, when the office of the President of Malta receives a request for a presidential pardon, such request is normally communicated to the minister responsible for justice for his advice, who in turn generally consults with other authorities such as the Attorney General or the Commissioner of Police.

What is also noteworthy about the manner in which presidential pardons are granted is that contrary to criminal offences which are tried by independent and impartial courts in a public setting, all discussions and arrangements in connection with presdential pardons take place privately behind closed doors. The consultation carried out, if and when this is done, is normally limited to government ministries, departments, agencies and/or the public administration. Technically speaking, the Cabinet need not even consult with the Attorney General and/or the Commissioner of Police prior to deciding whether or not to grant a prerogative of mercy. Moreover, the public and the media is never consulted as to whether an amnesty should or should not be given and in which circumstances or under what conditions. This makes the exercise rather secretive and partial.

One may, in light of the above, justifiably question the overall fairness of the system of presidential pardons, especially in Malta where the decision-making process is not transparent and is practically left in the hands of polticians. However, on the other end of the spectrum, the importance of the presidential pardon system – which is found in most democratic countries – is undisputed if utilised for humanitarian reasons, inter alia to combat miscarriages of justice and as a tool to ensure that those who commit serious crimes do not escape punishment.

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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.

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In Malta, the 17th of December is the feast day of the Catholic patron saint of lawyers, this being Yves Helory de Kermartin, traditionally known to us as Sant’Ivo. Why this is the celebrated date it is not really known, since really and truly, he is commonly and widely celebrated on the 19th of May all around the world.

Be it as it may, every December 17, lawyers take off their togas, and convene together outside the law courts, and away from the daily hustle and bustle of the courtrooms, to celebrate together a year of hard work.

Sant’Ivo was born in Kermartin, near Tréguier, Brittany (today a part of France), on the 17 October, 1253 and died at Louannec, on the 19th May, 1303. Sant’Ivo was the son of a nobleman and from a well to do family. He first studied civil law and later canon law and was learned thereon. It is said that among his classmates were the likes of Duns Scotus and Roger Bacon.

He also studied theology and is said to have also joined the Third Order of Saint Francis, being what in Maltese we might call a ‘terzjarju’, although he was later ordained to the priesthood too. Due to his charitable disposition, he became known as the advocate of the poor, especially since he represented the helpless and paid for their expenses in court. He also visited those he assisted in prison. All this presumably as higher acts of charity rather than out of professional duty and diligence.

He was above all an incorruptible diocesan judge, refusing the bribes that were the order of the day, and working to settle claims out of court in order to save the litigants time and money.

Sant’Ivo was also an ecclesiastical judge, and that might also be why certain sources also describe him as a patron saint for jurists, magistrates and judges as well.

He was known as ‘the Honest Lawyer’, (a surprising moniker, one must admit) so much that he is the subject of an amusing piece of doggerel found on his tomb in Tréguier Cathedral in Côtes-d’Armor, France, reads: Sanctus Ivo erat Brito Advocatus et non latro Res miranda populo (‘St. Ives was from the land of beef, A lawyer, and not a thief; A stretch on popular belief’).

The words of another Catholic saint of our period, Saint John Paul II highlight the greatness of Sant’Ivo:

“St Ivo was involved in defending the principles of justice and equity. He was careful to guarantee the fundamental rights of the person, respect for his primary and transcendent dignity, and the protection that the law must guarantee him. For all who exercise a legal profession, whose patron saint he is, he remains the voice of justice, which is ordained to reconciliation and peace in order to create new relations among individuals and communities and build a more impartial society. I give thanks for the shining example he offers to Christians today, and on a broader scale, to all people of good will, inviting them to walk on paths of justice, of respect for the law and of solidarity with the poor, to serve the truth and to take part in “a new “creativity’ in charity”.”

On this day, may all lawyers get the rest they deserve, and may they all follow the example of Sant’Ivo during the exercise of their profession.

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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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