What if a child opts to reside with his elder parents, when such parents enjoy the benefits of the old leases’ regime? This is the major preoccupation of every owner who has a property rented out under the pre-1995 leases laws. Indeed, lease inheritance, in favour of a lessee’s relative and the generation after that, as secured by the pre-1995 lease laws, is a further lifeline of an old lease that dates back generations − naturally to the disadvantage to the leased premises’ owners. As a point of fact, this is one of the reasons why such leases have become a recent major controversy, leading to a wave of constitutional lawsuits.
The legal norm is that when the tenant dies, the lease dies with him. But this (as always in law) is subject to exceptions, among which is the continuance of the lease by descendant of a tenant.
In such cases, the lessor would be compelled to accept the new younger tenant, under the same conditions that were enjoyed by his deceased parent(s).
Inheriting an old lease is not automatic. Several criteria must be fulfilled by a lessee when inheriting his parents’ rights of the old lease.
Indeed, by exception to the abovementioned norm, article 1531F of the Civil Code stipulates that a person may continue the lease after the death of the tenants if on June 1, 2008, the new tenant is the natural or legal child of the deceased tenant who had lived with his parent for four out of the last five years, and after June 1, 2008, continues to live with the said tenant until his death.
For the child to qualify as a legal tenant of a pre-1995 lease, such child must not fulfil the income and capital criteria of the means test
Additionally, for the child to qualify as a legal tenant of a pre-1995 lease, such child must not fulfil the income and capital criteria of the means test. In such litigious cases, it would be up to such child to prove that s/he does not fulfil the monetary and asset criteria that is set out by the law. Such criteria have featured in a very recent judgment bearing the names of ‘Anna Mizzi et v Edwin Camilleri’, delivered by the Rent Regulation Board on April 7.
The claimants were the owners of a Vittoriosa property that was being leased to the defendant’s mother. The lease in question predated 1995, hence it was regulated by the pre-1995 regime – the old leases’ regime.
The claimants sought the eviction of the defendant – a shop owner – on grounds that he did not fulfil the above-mentioned asset criteria. The plaintiffs further claimed that he had no right to inherit the lease from his deceased mother because, before her death, his parent was not residing in the Vittoriosa property.
The premises in question had been originally leased to the defendant’s parents and was under the regimen of the pre-1995 leases. The surviving parent – the mother – was actually admitted to an elderly home and thus was no longer residing in the premises prior to her death. Consequently, the claimants held that the defendant was not entitled to live in the leased premises because the property no longer served as the sole residence to the mother. Indeed, the defendant’s mother spent her last living years (three years) in a care home and never returned to the Vittoriosa home.
As a matter of fact, in cases where the lessee does not use the leased premises for a period exceeding a year, the law allows for the termination of the lease. Therefore, given the circumstances at hand, the claimants tried to argue that the lease in question had terminated once the original lessee (the mother) was permanently admitted to a care home.
In cases of admittance to care homes, article 1555A of the Civil Code stipulates that the lease agreement would not terminate, among others, if it resulted that the lessee was temporarily residing elsewhere due to a medical condition. In cases where elders were admitted to elderly homes (due to their frail conditions), our courts have triggered this article and safeguarded these old regime leases.
However, and in terms of the same article 155A(2) of the Civil Code, the law states that the lease agreement would be terminated if the lessee becomes permanently dependent on the medical institution that one is admitted to and by effect, the leased premises would no longer be utilised by the (original) lessee as their residential quarters.
Besides this, the Rent Regulation Board examined whether the lessee’s descendant fulfilled the criteria that was set out by article 1531F mentioned above.
In light of the evidence produced, the board found that the defendant did not effectively prove that he had resided in the leased premises on a permanent basis. Utility bills in connection to the leased premises showed bare consumption, leading the said forum to believe that the premises were not being habituated prior to the original tenant’s death. Evidence gathered suggested that the defendant barely made use of the premises in question and, therefore, he did not fulfil the residing criteria as set out in article 1531F of the Civil Code.
Additionally, the rental board noted that the respondent never submitted any evidence in connection to the means test criteria and resultantly deemed that the defendant was not entitled to inherit the rental rights that his parents had enjoyed in terms of the pre-1995 law.
Consequently, the Rent Regulation Board ordered the eviction of the respondent from the leased property.
Mary Rose Micallef is an associate at Azzopardi, Borg & Associates Advocates.