Expropriation in simple terms is the mechanism by which the government acquires private property for the benefit of the public, often against the wishes of the owner.

Five years ago, on April 25, the Government Lands Act came into force by way of ACT XVII of 2017 which replaced the outgoing Land Acquisition (Public Purpose) Ordinance. The new act sought to regulate, among others, this mechanism of land acquisition and to establish the procedure that shall be followed related to this acquisition.

The enactment of this act also introduced a fresh set of remedies intended to provide landowners with specific courses of action for problematic situations existing prior to the entry into force of this act, however, the right to take action may no longer be possible within less than two months from the date of this article. To be specific, the first deadline to institute an action comes about on April 24.

This first deadline applies to landowners in respect of whose land a declaration for expropriation was issued prior to April 25, 1992. This is applicable to those who have not received

‘Notice to treat’ or an offer for compensation and also where no declaration has been issued. Failing to take action will mean that the landowner will only be afforded the right to the compensation deposited (if any at all).

Landowners whose land has been occupied by ‘public tenure’ have until April 24, 2027, to take action. Acquisition by ‘public tenure’ was often assimilated to by our courts to a perpetual emphyteusis, whereby landowners were recognised by the government as owners, but possession was retained by the government, for which a negligible recognition rent would be given to the owners. Nowadays, acquisition by ‘public tenure’ is not possible anymore.

Landowners desirous of contesting whether expropriation was in the public interest only have 50 days from the issuance of the declaration. The European Convention gives states a wide margin of appreciation in determining what is in the public interest and this very question has also been the subject of interpretation in many local cases.

The Land Arbitration Board, which is the competent forum which determines and decides on cases relating to expropriation, refers to the Government Lands Act to determine whether the expropriation at hand falls under such definition, which, in turn, provides a non-exhaustive list of what shall be construed as in the public interest.

Landowners desirous of contesting the amount of compensation have five years from the date of said declaration issued by the board of governors of the Lands Authority.

The introduction of the act in 2017 was intended to minimise litigation before the courts. It is undeniable that the previous legislation brought about problematic circumstances and the rights of landowners have been violated for decades.

While the promulgation of the act saw the establishment of new remedies which brought about more legal certainty, we are yet to see whether the five-year prescriptive period will be challenged as even at parliament stage, many have raised their concern that this could lead to the limitation of citizens’ rights and possibly be rendered discriminatory and unconstitutional.

What is certain is that it is better to act now as tomorrow might be too late.

This article is not meant to substitute legal advice, it is highly recommended that you seek a lawyer should you have any issues pertaining to expropriation.

Marlon Borg is a partner at DF Advocates and Leon Chetcuti is a legal intern at DF Advocates.