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I am utterly shocked with the front page story that appeared on MaltaToday 6 June entitled ‘Conmen in cocky land scam’ and rest assured that any wrongdoing or negligence on the part of a colleague will be investigated by the Notarial council that I am President of and the necessary action taken.
This notwithstanding your article leaves some questions unanswered and this matter is related to a matter which, if well researched, may result in a defective law verging on the unconstitutional being amended, or being forcefully declared unconstitutional.
I assume that the purchasers, in their great majority, had a bank loan for purchase. I also assume that more than one bank may have been involved. I may be wrong but a loan for purchase is the norm nowadays, not the exception. How is it that this matter escaped the attention of the bank/banks or their legal advisors?
How are people to know whether the title to the Lands Department is a correct one? Do people have an idea of the power that the Ecclesiastical Entities (Properties) Act gives the Joint Office to register title of ex-church property in favour of the Government retroactively and without the necessity of giving the Land Registrar (the office which registers the title) documentation to back the registration claim? Yes, my dear friend, the situation is as bad as that! Who knows, you yourself might wake up one fine morning and find yourself in the unfortunate situation of the Wied Mejxu purchasers. Viz: without your knowing, property you bought in, say 1995, (this time with all warranties and perfect searches going down to an inheritance in 1956) being registered by the Joint office in 1999 and you coming to sell this property in 2004 and discovering that it is no longer yours because it has been registered (without your knowledge in 1999 by the Joint Office) and with the effect of this law the registration is deemed to have been made retroactively with effect from 1992! How’s that for a messy bit of legislation concocted by our legal brains?
For all that matters, it could be that the siblings Xuereb or their forbears acquired that property by acquisitive prescription, viz: they owned it for a period exceeding 40 years (normally 30 years for us mortals but being church property you need to possess it at least 40 years to acquire) and according to law they are considered to own it. It could be that the reason why Spiteri Holdings did not give the normal warranty was perhaps that they were cautious or wary to give the normal warranty as the original deeds were never found. Note that in case of inheritances you would have to go up in time and search the ancestors to get to the title. But there is a practical limit in this, namely the records (public registry indexing goes as far back as 1857!).
Note also that in the case of most church property (they have their own archives), a Notary states in the provenance of the property that it has been the property of this or that ecclesiastical entity “ab immemorabile” which in practical terms means: “We have no records of how and when it passed to the Church.”
This notwithstanding the deed goes ahead and the transfer is deemed perfectly valid and in the majority of cases no problems arise. It is however the Notary's practice to search for a deed. But in some cases this cannot be found and the purchaser takes the risk which in most cases is no risk at all because the law provides the solution in Acquisitive Prescription.
What is important is that from different sources (like rent books, notices of succession which show that death duties had been paid on the property) one proves that the siblings Xuereb and their ancestor possessed the property uninterruptedly for forty years. If this is so then it is of no importance that the property once was the property of an ecclesiastical entity. It was but through its inactivity that it lost it and the family Xuereb acquired it, period.
This is the crux of the whole matter. The joint office comes along, has a look at its famous ‘Annex 8’ which is the Church register wherein all church property transferred to the Government by Act of Parliament in 1992 (Ecclesiastical Entities (Properties) Act) is listed and splashes the registration of said property in the Land Registry, without your knowledge and without documents to substantiate title.
Their title is immediately given the force of law retroactively against the Latin maxim “Lex non habet oculos retro,” which militates against the retroactive effect of a law. Suddenly you find yourself with nothing. The Land Registry has the power to give the Government its title but is powerless to remove it in case the title was wrongly registered and no documentation to substantiate Government’s title is not provided to the Land Registrar and notwithstanding the prescriptive period. You have to go to Court and die with grief in the meantime. How’s that for equity and justice? This too goes against the other cardinal principle in law “Audi alteram partem.” The land Registrar hears but cannot give fast remedies as this unhappy state of affairs calls for.
I might add that this matter is being tackled seriously by the Notarial Council and urgent amendments in the law are necessary. This inequity must be remedied.
Victor J Bisazza
President Notarial Council
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