Disjointed office

President of the Notarial Council Victor J Bisazza is quick on the draw to point out the anomalies which exist in the registration of land by the Joint Office.

Notary Victor Bisazza was quick to react to a report carried in this newspaper on a land scandal involving hundreds of thousands of liri. As President of the Notarial Council, Bisazza primarily staked his interest in asserting who were the notaries involved in this land transfer which saw government-owned land illegally sold to unsuspecting individuals.
The case of the Wied Mejxu residents in Ta’ l-Ibragg is a lesson in the art of fraud. It implicates several actors in the entire saga and one which sheds lights on the legal structure which governs the transfer of land between the Church and State.
Elton and Cheryll Penza purchased a house from Raymond Aquilina’s company Terra Mediterranea back in 2002, only to discover soon after that they were standing on government-owned land. It was revealed how the Joint Office, the entity which governs the registration of land formerly owned by the Church to the ownership of the state, had transferred the area known as l-Ghalqa ta’ Giakondu, where the Penza house was situated, to the government.
At the outset, it was presumed that a whole conspiracy was at hand. How could the notaries not have realised that this was in fact government-owned land? Victor Bisazza was cautious: given that the land was transferred from the Church to the state, he demanded to see a title that effectively proved the land had in fact been the property of the Church in the past. The reason? It could have been incorrectly registered in the name of the state.
“Having read the reports on the land scandals, I was looking at the whole story from a different aspect, especially since I was personally involved in a similar case registration by the Joint Office. Before that personal episode, I had never looked closely into the law. Since then, I looked into this case to see whether there were any similarities in the manner the title was registered. That is what worried us as a council. It looked as if we were battling against something occult.”
The 1992 Church-State agreement had set out a list of 35,000 properties, all collected in the so-called Annex 8, to be transferred to the government, governed by the Ecclesiastical Entities (Properties) Act. The Joint Office was the entity set up to carry out this registration. Since 1992, only 8,500 properties have been registered, that is given full possession to the government. As the case of the Wied Mejxu residents shows, this law has certain curious, and indeed disastrous, consequences.
In 1981, the Land Registration Act was passed and consequently established a Land Registry to carry out the registration of land of the Maltese islands. The exercise roughly consists in a gradual survey of the land, drawing confines around areas whose ownership has been backed up by absolute documentation and titles.
“In 1981 the Land Registration Act was passed by government to establish a system that would supplement the previous system employed by the Public Registry, to register property and to be able to identify this land. Before it was not possible to know who owned a piece of land if you put your finger on a map: the very owner of the land had to be enquired about, hoping that one would eventually get to know, maybe through neighbours, who the owner of the land was. The new system, known as the cadastre, was far more beneficial to the citizen, especially since if the owner of a title presents the appropriate documentation and evidence to back up a title of ownership, the Land Registry would guarantee that title.
“This went on until 1992, when the government was faced with the Church-State agreement, binding itself to register the properties transferred to it by the Church before any form of title would have been even presented.”
At this stage, a different approach was taken. Whilst the Land Registry had since 1981 registered land backed up by proper documentation, the setting up of the Joint Office proved to be a harrowing experience for the new registry. Until 1992, the government gazette used to publicise those areas in which registration had occurred.
“In that particular area, any form of sale or transfer, would have to be registered at the Land Registry perfectly, that is, with full documentation. If the documentation would not be sufficient, the ‘owner’ would be awarded a possessory title instead of the absolute title. If mistakes happened in this regard, and an absolute title was awarded incorrectly, the government would compensate for such a mistake.”
In 1992 however, when the Church-State agreement came through, the government was faced with thousands of Church properties listed in Annex 8. Realising that the law it had crafted in 1981 would prove to be a cumbersome process for the Joint Office to register all the properties the Church was transferring, a new law – the Ecclesiastical Entities (Properties) Act – was passed, stipulating that no form of absolute documentation was required to register the land listed in Annex 8.
“The lands included in Annex 8 was a list of properties which the Church possesses or which it claimed it possessed. I suspect that, although it is true that the Church once owned or administered those thousands of properties, however it could be the case that, despite the Joint Office’s database being quite precise, I would say that if there are 90 per cent of the properties which are correct, there is some ten per cent which may not be.
“This is further emerging now, unfortunately, as the Joint Office registers lands left, right and centre. They could be doing some registration here and there, and they could be bothering somebody: basically this is what the law consents them to do, but they have to be wary of what they might do incorrectly. And I fear that there are properties in Annex 8 which should not be there.”
This was in fact the case recently elicited by Bisazza on the Wied Mejxu land scandal.
MaltaToday had revealed how Gozitan Domenico Savio Spiteri, the director of Spiteri Holdings, had managed to dupe buyers into purchasing land at l-Ghalqa ta’ Giakondu which he did not own. He claimed the land originated from an inheritance he purchased for Lm7,000 from a testamentary executor, Fr Renato Valente, as contracts of sale prove this.
Some of these buyers, like Raymond Aquilina’s Terra Meditteranea, already had had previous relationships with Spiteri. Aquilina himself had built the houses on the land at Triq Wied Mejxu before actually buying the land off Spiteri.
The case proved difficult: looking up the deed of purchase signed between Valente and Spiteri, which was lodged at the Public Registry, nothing looked suspicious. The deed, drawn up by Notary Anthony Abela, simply spoke of an inheritance. It later emerged however, that an original draft of the contract, lodged at the Courts since the sale of the inheritance was governed by the Courts, contained two important items which had been left out in the deed of purchase.
What in fact had been left out in the second, revised contract were the contents of the inheritance, which were two fields located not in l-Ghalqa ta’ Giakondu but 775 metres away at Tal-Franciz, and the all-important clause that there was no peaceful possession of the land, which meant that Spiteri had purchased land which could have other titles to its ownership.
The revised contract allegedly assisted Spiteri in selling off the land without anybody suspecting foul play. Notaries carrying out searches on the last ten years of movements on the land would have not suspected the deed of purchase lodged at the Public Registry: the contents of the inheritance were missing, and since the clause that there was no peaceful possession on the land had been removed, it meant that everything could have been in order.
“I did not enter into the merits of how my colleagues may have acted in this case,” Bisazza says. “As President it was right for me to ask who these notaries were and what they had done. I spoke to one of the notaries. What I believe is one point in their favour is the fact that the title could have been a difficult one. So I did not enter into the reasons of how this mess happened. However, one of the notaries concerned approached me because he was very worried about the whole affair and I had to calm him down and to see exactly what the procedures followed had been. It was not in my interest to carry out some form of pogrom at that moment in time. If I expressed myself on their acts before the council discusses the case, I could prejudice these very notaries. But yes, we are interested to see how this case happened and how it will develop. Especially since, in such cases, anybody, even who carried out all their duties to the letter, may find themselves embroiled in this same situation.”
As the case developed, two aspects emerged: the first was that a fraud had occurred, allegedly with Domenico Savio Spiteri tampering with the contents of the sale of the Xuereb inheritance, offering him leeway to sell the land; later on, Raymond Aquilina would sell the houses he built on the land to the Penza couple, who would go on to find out the land had been registered in the name of the government. The second aspect however, took the scandal into another direction. It was what Bisazza believes to be the incorrect registration of the land at l-Ghalqa ta’ Giakondu in the government’s name.
“In the case of the Ta’ l-Ibragg land, the property was registered in 2003. There was no documentation to back it up, since the Joint Office does not require this. But as an inheritance in my possession shows, the one pertaining to l-Ghalqa ta’ Giakondu, this land was only bequeathed to the Church for administration.
“This means that the person concerned, Giovanni Schembri, gave the land to the Church to administer, and in return for the rents collected off the land, had to celebrate as many masses possible for the repose of his soul. Now when you administer, you cannot expect to own. The property itself is the possession of the deceased’s heirs. But if the heirs do not make a claim to the land, it means they are not interested in this property. The Curia was the perpetual administrator of this land. This is clear in the inheritance.
“This is why I have been careful not to chide my colleagues. If nobody knows who these heirs are, it could be the case that somebody else entered the land and claimed it as theirs. The point is that the whole saga cropped up because the Joint Office claimed it had a title to this land. My contention is that, if this land had not been registered in the name of the government, this whole affair would not have happened. Nobody is saying ‘this land is mine’. The farmers who were renting the land are not saying this land is theirs. The only people who are saying the land is theirs are those who purchased the homes from the company. The government says the land belongs to the state, but it was acquired incorrectly, because the inheritance awarded the land to the Curia only for administration, and not ownership.”
The state of affairs in fact offers a loophole for other people to enter land once nobody makes a claim to it. “This is rampant. Land is scarce and anybody who finds a space to pitch their flag on it, acquires it. And they have a right to it. This system is accepted by the government: one can acquire a piece of land through acquisitive prescription by occupying it for 30 years, as nobody makes a claim for it.
“But if somebody bought the land with a contract and were in good faith, as in the case of the individuals who bought the houses at Ta’ l-Ibragg; if in these ten years, there was no claim to the land, this becomes their property. If you don’t take care of your property, the law presumes that you are no longer interested in the land. And if you occupy that land and spend 30 years on it with no challenge to the ownership, that land becomes yours. So in the case of the Wied Mejxu residents, if the land had not been registered in the name of the government, as the case so appears to be, after ten years they would have become the owners of the land.
“My whole contention is, don’t scrap the laws, just make them more reasonable. Today, I understand the subject even more having learnt through a personal experience of mine. The problem is that there is no equal footing between the citizen and the Joint Office. We have directed our notaries to have a site plan ready for every contract and to check all details with the Land Registry.
“After the contract is done, however, keep your fingers crossed, because the Joint Office can register the same property, without informing you. A citizen who has the titles and documentation to prove a piece of land is his cannot go up to the Land Registry to ask them to register the land if that same piece of land lies is a non-registration zone; that means the Land Registry has yet to draw its own confines on the area and to back this up with the appropriate titles and documentation. On the other hand, the Joint Office can come along, with no title at all, instantly register a piece of land overlapping on the citizen’s, because it has been listed in Annex 8, and the whole episode basically repeats itself.”