It has become commonplace for the courts to consistently declare and confirm that chapter 69 of the laws of Malta and Act X of 2009, which protects sitting tenants in pre-June 1995 leases, is in blatant breach of the constitution and the European convention on human rights.

However, the constitutional court has shied away from ordering the eviction of tenants in order to protect the wide-ranging implications this will have on them and their ability to find alternative housing at affordable rates, despite the fact that they are authorised to do so at law.

Essentially, this has left the landlord in a precarious situation. Receiving damages from the state for keeping unconstitutional laws in force, for past damages, is now near guaranteed. However, just providing this remedy ascertained the right for the sitting tenant to continue to enjoy the property and this to the detriment of the landlord’s repossession which, therefore, does not cater for any future damages vis-à-vis the landlord.

With this trend of judgments, the constitutional courts only addressed the issue of past damages but failed to address the question of future damages. This leaves landlords in a prejudiced position in terms of the fluctuation of their rental income and damages suffered.

The government has long anticipated this situation. The courts have continuously stressed in several judgments that the laws are unconstitutional and prejudicial and that the solution was not simply awarding damages to the landlord but, rather, to ensure legislative intervention which alone can truly strike this fair balance between all the parties concerned – a legislative intervention, which to date, has not yet ensued.

Unlike the procedure under chapter 158 of the laws of Malta that regulates leases emanating from a temporary emphyteutical concession and/or leases of a decontrolled premises, chapter 69 of the laws of Malta does not cater for the protection of the sitting tenant and neither for the landlord to receive adequate compensation.

The constitutional court has emphasised that, if it had to only award damages and leave the law in effect between the parties, it would be effectively permitting a state of unconstitutionality. It has stressed that the awarding of damages is not a “licence” to continue violating the fundamental rights of the landlord.

However, the rent regulation board (RRB) itself rarely ever went so far as to evict the occupant. Finally, after several declarations from the constitutional court, in a landmark judgment delivered by Magistrate Josette Demicoli on December 2, 2020, presiding over the RRB in the case Joseph Grima et v. Lawrence Aquilina et, the court, for the first time, ordered the effective eviction of the sitting tenant.

Landlords should now no longer be inhibited in terms of regulating their future rental income- Nick Debono

The plaintiffs were owners of a large property in Żebbuġ that was rented out to the defendant’s parents generations ago. However, as a result of chapter 69 of the laws of Malta, after the death of his parents, the defendant himself had the right to keep living in the property at a ridiculous rate, which did not reflect the rental value of the market.

The court declared that the declaration of the breach of fundamental rights of the first hall civil court in its constitutional jurisdiction cannot be taken in a vacuum in such circumstances and, thus, the subsequent eviction of the tenant is effectively required. The court also emphasised that, although the lease was not deemed null and without effect, the procedure in front of the RRB for the actual eviction of the tenant was essential and necessary.

This judgment is surely one that will have a ripple effect across this legal sphere and which should, undoubtedly,  trigger the legislator into effecting an overhaul of this legislation to strike a fair balance that serves both the landlord and the tenant.

This will allow the landlords to reclaim possession of their property which would have been shackled to a paltry rent ad infinitum and effectively provide them with the opportunity to enjoy what is their fundamental right to property. It should never be the duty of the landlord or of the tenant to compensate each other for enduring the effects of inadequate and unconstitutional laws.

The renowned legal principle of proportionality in the consequences of a decision has finally been struck because, following this judgment, landlords should now no longer be inhibited in terms of regulating their future rental income.

Although the Maltese legal system does not enhance the notion of legal precedent, meaning that such a judgment does not tie the hands of any future adjudicators, notwithstanding, this will, undoubtedly, influence future decisions of such kind.

In this regard, the landlord’s rights have, finally, been given the fair and required remedy following a number of years of injustice.

Nick DeBono, lawyer, Fenech & Fenech Advocates