Over the past weeks the Private Residential Leases Bill, which is currently under scrutiny by the Parliamentary Consideration of Bills Committee, has generated much debate.
Public responses to the Bill have been prevalently positive, as it is widely acknowledged that Malta will start moving towards a European standard even in terms of housing policy.
While there has also been legitimate criticism levelled at certain provisions, overwhelmingly negative views seem to have lacked a necessary degree of detachment.
The Bill proposes a balanced regulatory model that will imply the least disruption for landlords operating good market practices. In fact, such landlords will now not only be afforded greater certainty through the registration of contracts but they will also be granted additional remedies in case of overholding by the tenant and fiscal rewards for offering longer-term leases.
The Bill does, however, aim to curb bad practices such as refusing to enter an agreement in writing, renting for extremely short periods of time, notifying the tenant about the non-renewal of their agreement at the eleventh hour, impeding the tenant from benefiting from discounted water and energy tariffs or denying him or her access to the periodical bills altogether.
The Bill thus represents a “light-touch” regulation which, by European standards, remains among the ones that offer landlords the greater degree of contractual freedom. Abroad, the minimum guaranteed term for tenants is that of three years or more, with certain countries offering even indefinite contractual duration against the landlord’s unilateral right to raise the rent in line with neighbourhood averages and the possibility of retrieving the premises in case of personal need or substantial renovations.
In all of these cases, state intervention is not the result of whimsical arbitrariness or frenzied ideology, but rather the ramification of a genuine commitment to the right to adequate accommodation.
Hans Kelsen, a renowned 20th-century jurist, stated in his work General Theory of Law and State, that a legal right necessarily presupposes somebody else’s legal duty.
The challenge in the Private Residential Leases Bill was precisely that of realising and giving effect to the right to adequate housing, without impinging on the freedom within the private rented sector, which has historically shown itself particularly sensitive to heavy-handed regulatory interventions, even in Malta.
The claim that the discretion given to the Housing Authority is unfettered and arbitrary is false
A particular landlord’s reaction during the Malta Developers’ Association meeting, who accused the state of “absurd arrogance” for legislating over this sector, is, therefore, completely dissonant with the heightened concept of the rule of law, which presupposes, within any given territory, the implementation of basic human rights standards.
Another claim made during the MDA’s meeting was that the Act does not exclude luxury properties from its ambit.
This is a serious consideration. The notion that higher-income earning individuals should constitute an exception to the rule exposes a narrow-minded mentality, which, in the case of European nationals, also contradicts the spirit of openness and free movement. Human rights are not to be applied selectively.
Finally, another concern which was voiced in recent days was the Housing Authority’s right of entry into private premises for purposes of investigation.
First of all, such claims are inherently misleading since the article in question specifies that the power of inspection is limited “for the purposes of carrying out [the Housing Authority’s] functions under [the Private Residential Leases Act]”. The claim that the discretion given to the Housing Authority is unfettered and arbitrary is, therefore, false.
Secondly, the article giving the right to the authority to carry out inspections on private properties merely reproduces the corresponding measures afforded to the state under the Development Planning Act and the Lands Authority Act.
Such laws, together with other examples such as the Malta Travel and Tourism Services Act, all provide for the public authority’s right of entry and inspection without the requirement of a judicial warrant.
Those who are suddenly expressing scepticism over the power granted to the Housing Authority should, therefore, be questioning the enforcement powers of all state authorities across the board, rather than that of one single entity.
One would presume, most of all, that a scrupulous devotion to human rights implies an equal degree of dedication to the right of adequate accommodation for everyone. All basic human rights should, after all, be held equal and interdependent.
Kurt Xerri is a lawyer and an adviser to the Parliamentary Secretary for Social Accommodation.