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Strasbourg Court: A Breach of Fundamental Rights Commences when the Disproportion in Rental Income Arose

By February 4, 2022November 20th, 2023No Comments

There have been countless court cases both in the constitutional courts of Malta as well as in the European Court of Human Rights in Strasbourg in relation to Maltese legislation which enabled the conversion of a temporary emphyteusis contract converted by law to a permanent lease all without the consent of the rightful owner, for pre-1995 leases. In view of this situation a discrepancy arises between the income received in rent by a non-recognised tenant and the market value of the rental income of such property. Both Maltese constitutional courts and the Court in Strasbourg have deemed such a situation as a disproportionate burden for the landlords and by default a breach of Article 1 of Protocol No. 1 of the European Convention of Human Rights which is also part of Maltese law under the European Convention Act enacted in Malta in 1987.

In view that so many years have elapsed with this unconstitutional law still part of Maltese legislation, many a time the claimant in such constitutional legal redress will be the person who inherited the property in recent years. One issue which arises in such cases is at which point should the calculation of the loss of earnings take place i.e. should it be at the point when the present owner took possession of the property by inheritance, or should it commence to be calculated from when the antecedent (the person from whom the property was inherited) started to suffer a disproportionate burden? Maltese judgements have pronounced themselves on this matter, however there is now an express unequivocal pronouncement from the Strasbourg Court which in RADMILLI v. MALTA (Application no. 28711/19) in the judgement delivered on 13 January 2022, stated that:

There is therefore no reason to exclude the years during which the applicant only part-owned the property, or those where it was held by the applicant’s ascendant – bearing in mind, however, that the disproportionality must not have arisen immediately.

The Court’s reasoning is therefore that the starting point for the commencement of the breach of rights is not tied with when the person becomes owner of the property. It is instead linked to when the disproportionality of the rental income and the market rental income arose, irrespective of whether this point in time predates when the property was inherited.

Both pecuniary damages (damages calculated for loss of income which is quantified) and moral damages are awarded by both the local courts and Strasbourg courts. Such damages run into thousands of euros, with one case in the constitutional court of  Malta awarding one million euros. Rightly so such compensation is not paid by the tenant. It is paid by the Maltese State in view of the unjustifiable lack of legal amendments to address the unconstitutionality of the present legislation.  

In other words, all this compensation is paid through Maltese tax payers money when such money would be far better spent on social housing for genuine social cases and not to protect tenants who might not even be deserving of such protection. The lack of political will for our legislators in Parliament to address such issues on the unconstitutionality of our legislation is testament to the lack of respect of Malta’s Constitution and is resulting in an unsustainable pay out of awards for damages from taxpayers money.

For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.