David Darmanin A newly created parliamentary committee responsible for proposing revisions to outdated laws is expected to discuss court decisions that rule emphyteusis laws as anti-constitutional, with the scope of drafting new laws to reform the regime.
A 23-year court saga on land ownership has finally ended with a verdict that ruled a 1979 law governing lessees’ rights in temporary emphyteuses as anti-constitutional and in breach of fundamental human rights.
As a result, the Constitutional Court referred the sentence to parliament and the ball is now in the House of Representatives’ court to redress social injustices in Malta’s rent regime.
As it stands, property lessees may take advantage of the 1979 law passed by a Labour government that gives them the right to convert a contract of temporary emphyteusis into a permanent one, denying landowners the possibility of ever regaining free possession of their property.
The recent development is understood to come as a breath of fresh air to land owners who deem the ordinance unfair, especially since the emphyteusis system was not addressed in the recent rent law reform.
Shadow Justice Minister Jose Herrera, a member on the new parliamentary committee being chaired by Nationalist MP Franco Debono, told MaltaToday he plans to “propose comprehensive solutions within this committee so that the way emphyteusis holders are being negatively affected by the law is addressed, with the hope that the committee will have its proposals on the matter within the next few months.”
The recent court decision, which could bring the 1979 amendment to an end, concerns a contract of temporary emphyteusis signed back in 1887, for a stretch of land in Paola measuring 1,124 square metres, conceded for 99 years at €5.65 per year.
Upon expiry of the contract in 1986, the heirs of the lessees initiated civil court proceedings so that their expired agreement can be converted into a permanent one, by paying the six times the rent amount – €33.90 per year for land estimated at €232,627.
The first court upheld the lessees’ request in 1993, and upheld by the court of appeal in 2001.
But the landowners proceeded to file a case in the constitutional court, contending that the 1979 amendment prohibiting them from repossessing their own land was in breach of their human rights. In October 2008, the court threw out the case, denying the complainants’ request.
In April 2009, the decision was appealed. The Constitutional Court of Appeal nullified the sentence, and ruled the 1979 law unconstitutional, and in breach of the European Convention of Human Rights.
But Herrera clarifies that constitutional court sentences do not automatically result in changes in legislation, as it is then up to parliament to decide whether any action should be taken.
“Court sentences, including constitutional ones, make justice between the parties,” the Labour MP said. “So the particular sentence has only declared a state of fact between the complainant and the Attorney General – it does not annul the law.”
Herrera said that if parliament does not act on this constitutional court sentence, other persons aggrieved in a similar way would have no other option but to also take their cases to court, with the likely result of a swifter process and quicker sentencing.
“The same thing had happened when the courts had recognised that transsexual persons have a constitutional right for gender reassignment. Parliament did not act on the court decision, so every transsexual wishing to reassign gender had to take the case to court.”
Herrera is upbeat on the creation of the new parliamentary committee – which convened for the first time last Tuesday. “As it stands, constitutional sentences just reach parliament – and the speaker cannot legislate, he cannot draft new laws,” he said. “This is why the creation of a new committee marks a positive step forward.”
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