This is part two of a two-part series. The first article reveals how a petition concerned residents prepared to protect their interests has been hobbled by the coronavirus pandemic.

A court had rejected an attempt by a foundation to get property-holders evicted from lands at Iċ-Ċnus tan-Nadur in a case filed in 1956, Times of Malta has discovered.

Iċ-Ċnus tan-Nadur is the area that has been registered by Carmelo Galea on behalf of the Beneficcju ta Sant Antonio Delli Navarra over the past two months.

The benefiċċju, or foundation, was set up by Mdina noblewoman Cosmana Navarra in 1675, the year when a plague epidemic – the deadliest in Malta’s history – killed more than 11,000 people.  

The land in question, however, is not mentioned in the original 1675 deed setting up the foundation.

Questioned about this by Times of Malta, Galea said that the lands put into the 1675 deed “are not necessarily the only lands belonging to the Abbazia [foundation].”

He cited a 1737 deed in which Iċ-Ċnus tan-Nadur was “granted in emphyteusis ad tertiam generationem [for three generations].” 

That’s the same deed invoked in the 1956 court case, by which the foundation requested eviction of the land-holders on the basis that the three-generation emphyteusis had expired after 200 years.

Dozens of land-holders fought back by making a resoundingly similar counterargument: that the measurements of land or property made by the foundation were inaccurate and the description of the land in the deed was unreliable.

The court held that it may be “possible” that the land claimed by the foundation corresponds to that leased in 1737, “but this possibility is not convincing to the point that would lead” it to rule in favour of the foundation. This led the court to reject the foundation’s request, a decision that was reconfirmed upon appeal in 1977. 

Justice sources said it’s unclear whether res judicata rules would now restrict the foundation’s ability to mount similar court cases afresh. This would partly depend on whether the foundation has additional evidence this time round.

In an email to the Land Registry a month ago, Galea wrote of having “adequate proof” that the territory belongs to the foundation. And in his answers to Times of Malta, he wrote about “further evidence” in the form of a deed dating to 1901 in which a plot of land was granted to a priest to build a church.

“The church still exists today,” he wrote, “and this serves to confirm the precise location of the lands known as Iċ-Ċens tan-Nadur.”

Notaries express scepticism

In an email replying to questions by Times of Malta, the assistant land registrar, Marlin Vella, wrote that “as far as I am aware, the Beneficcju [foundation] had always defended its title successfully”.

There had been“individuals”, he added, who had “cancelled previous applications for registration of property in their name, and later bought the property from the same Beneficcju.”

Such assertiveness contrasts with an email he sent to Dr Galea last March 3 in his capacity as land registrar. In it Vella wrote that it “results” that a large part of the registered territory that he had approved in the foundation’s name had been “acquired by third parties through acquisitive contracts or inheritance that goes back generations.”

Vella had then asked for additional evidence, and whether all or part of the territory remained in the foundation’s possession. 

Several notaries who spoke on condition of anonymity were surprised that Galea’s applications were accepted or approved given the size of the lands – as large as four football grounds – in the middle of the village on which around four dozen houses sit.

Among them are five properties that had been registered before Galea submitted his applications. This included a church’s garage – in which the feast’s street décor is stored – that was registered 20 years ago on the strength of a law passed in 1993.

In situations where an incoming application overlaps with other registered properties, the Land Registry can choose to reject the application or accept it and deduct the overlaps. Whichever way it decides depends on the nature and extent of the overlaps and territory. In this case, Galea’s application was approved and then corrected – the pockets of land covered by the previously-registered properties were deducted from Galea’s applications. 

Gozitan notaries also said that Vella usually checks their deeds and plans carefully and make queries about additional documents mentioned in notarial deeds, such as inheritance tax deeds (causa mortis). They questioned how such scrutiny could have been possible in this case given that the deeds pertaining to the Nadur lands are in Latin.

Galea did not submit translations – and Vella did not request any.

Asked about the absence of certified translations, he said that if whoever made the application declared that what’s in the application is true or verified (in Maltese: veritier) and that there are no facts that the applicant knows of that contradict what’s in the application, then the Registry proceeds with the registration.

He said that given consideration of recent history of the foundation’s claims elsewhere, his decision to approve the foundation’s applications “is well-founded” and that he “never had any reason to doubt the veracity of Dr Galea’s applications.”

One notary said: “I have had applications queried over overlaps of a couple of feet or less. So how can these two large areas which neatly skirt around streets that might not have existed as now centuries ago be verifiable? The land measurements of centuries ago weren’t exact, and description of lands on ancient deeds is quite unspecific.” 

Only courts can decide

A lawyer familiar with some of the properties said that the final court judgment in favour of the residents in 1977 had led to the assumption among residents – who reportedly celebrated in the square afterwards – that the people who held properties were safe.

This may have created a legal dynamic and, after 30 years of limbo, the occupiers’ then additionally began to benefit from ‘acquisitive prescription’ – a legal concept that allows an occupier to gain title of property after 30 years of occupation free of claims.  

Galea did not deny this possibility in his answers, but said that the “onus” of proving acquisition through this avenue lies on those who might have had “usurped parcels of these lands.” 

Times of Malta can verify that a proportion of affected people or residents are in possession of freehold contracts – giving them outright ownership. But the consensus among notaries is that there are no unequivocal answers, that not all cases might be the same, and that only a court can decide with finality as to which party has legal grasp on the property. 

A pattern of deals out of court

In an email to Vella a month ago, Galea wrote that the foundation accepts that there are people who have built their houses on the Nadur lands.

He then told Vella that he could inform residents turning up the Registry that the foundation would like to meet each resident – in which each resident would “present his documents and we would present ours” – in pursuit of an amicable settlement.

Elsewhere in east Gozo over the past few years, the foundation has largely pursued out-of-court deals with individual property holders. But most of the deals have been clinched on undeveloped land and people are more likely to hold their ground when it comes to houses.  

In pursuit of out-of-court settlements, the foundation is known to approach people informally or send a lawyer’s letter. If there is no breakthrough, in at least some cases the foundation then escalates to judicial letters in which property-holders are accused of abusive and illegal occupation of property, requested to pay unspecified damages, and threatened with legal action and police reports that would purportedly lead to criminal proceedings.

Legal sources in Gozo said that many recipients feel spooked by the judicial letters, particularly the reference to criminal proceedings – a point that’s made emphatic in the letter by notifying the police commissioner.

Some of these people, elders particularly, feel that the odds would be against them in any ensuing legal battle. The combination of legal threats, low confidence in the justice system, potentially costly fight-back (just the notarial research that goes back generations can cost thousands), as well as property by inheritance in which other heirs would be involved, serve to create a willingness to negotiate and give ground. This is particularly in lands outside development zones. 

The stakes are high in Nadur: the undeveloped parts of the registered lands, which lie within development zones, are worth millions.

Key speakers in two public meetings earlier this month urged the affected people to refrain from negotiating with the foundation individually.

PN MP Chris Said, himself from Nadur, told residents that the foundation does not know what deeds they have, and to hold their nerve.

Legal sources said that it would be hard for the foundation to make inroads for as long as the unity among residents holds.

Relationship between Galea and Vella

In the public meetings earlier this month, allegations that Vella works for Galea part-time – together with allegations of collusion – flew around the hall.

Asked about this, Vella said he had ceased working for Galea 13 years ago, and denied ever discussing foundation matters with the lawyer. 

He added that he had only been to Galea’s office in recent years because he had been his lawyer, and separately his mother’s lawyer, in court cases.

Galea had represented Vella in a case in which he sued the government for offering him insufficient ‘acting allowance’ for having performed two roles – Lands Assistant Registrar and Agent Director of Public Registry – simultaneously for several years.

He had been remunerated €25,291 but Vella argued that the figure should have been €99,910. The court upheld his request, ordering the ministry to pay him the difference of €74,618 plus interests.