The Constitutional Court has confirmed that a law meant to protect band clubs from eviction is unconstitutional.

In the latest chapter in a long-running saga, the court threw out appeals by the State and the Stella Maris band club, bringing the landlords a step closer to reclaiming possession of their Sliema premises.

The court declared that in spite of the public interest to protect band clubs, there was no public interest in granting impunity to those who failed to fulfil contractual obligations they had freely undertaken, effectively confirming the position taken by the first court.

The saga started over 12 years ago when the owners of the premises at Sliema's Annunciation Square filed proceedings before the Rent Regulation Board in a bid to regain possession of the property leased out to the Stella Maris band club.

They argued that the tenants had carried out structural works without their consent and without the landlords being aware of the application for planning permits.

The Stella Maris band club which held the premises under a lease dating back to 1959, countered that those works were ordinary maintenance, needed to ensure the continued use of the property.

In 2017, the board threw out the landlords’ claim, triggering an application to the court of appeal.

But pending that appeal, in 2018 the government introduced an amendment to the Civil Code which effectively blocked the landlords’ attempt to evict their tenants even when these had undertaken structural works without the landlords’ consent.

Article 1531J(5) was to apply retroactively.

Later that year, the court of appeal delivered a partial judgment overturning the Board’s decision but stopping short of pronouncing eviction of the tenants, allowing the landlords as appellants to review their legal position.

They sought a reference to the First Hall, Civil Court in its constitutional jurisdiction, resulting in a judgment delivered by Chief Justice Mark Chetcuti in 2020 declaring that the 2018 legal amendment breached the landlords’ rights.

Both the State Advocate as well as the Sliema band club filed separate appeals which culminated in the judgment delivered by the Constitutional Court.

As the law stood before the 2018 legal amendment, band clubs would not be lightly deprived of their premises, observed the court.

That would only happen if they failed to abide by the terms of their lease agreement and once such failure had been proved after due judicial process.

In this case, the law was not amended so as to address some regulatory anomalies, or technical defects or abuse by the system.

If anything, one would have foreseen another kind of development in line with the current trend to safeguard fundamental rights of property owners rather than to further erode those rights.

Within the current legal scenario, the tendency is to seek to reduce rather than increase the privileges of tenants who continue to make use of leased premises against rents that are effectively subsidized by the owners.

Contrary to what the appellants argued, it was no “too harsh and totally disproportionate measure” for a party to forfeit its contractual rights once that party had not abided by its obligations on the contract.

The appellants focused their arguments on the cultural value of band clubs and that is not disputed.

But the legal amendment sought to protect such clubs against the consequences brought about by their own illicit behaviour, namely their breach of contractual obligations.

The public interest

There was a public interest to protect band clubs but no such interest to grant impunity to those who did not fulfil the obligations they had freely undertaken, went on the court, expressing agreement with the first court.

In such circumstances, the notion of public interest was even stronger and “more compelling” once the end result would be to reward the party that was non-compliant whilst punishing the victim of such non-fulfillment and leading to further erosion of that victim’s rights.

“The fact that band clubs serve to contribute to society by enhancing folklore and the teaching of music does not mean that every measure taken to safeguard them is automatically a legitimate one,” said the court.

Article 1531J() was not protected by the Constitution but rather went against it.

It made no difference that the landlords held the premises under temporary emphyteusis set to expire in a few years’ time.

Rather such a scenario made their claims all the more urgent since they were not to be deprived further of the property in the few remaining years, said the court.

The 2018 amendment was a legislative intervention intended to protect the tenant from the consequences of his own illicit acts and there had to be a much more compelling public interest to justify that.

Such interest was not proved.