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Property Law

Structural alternatives in rented properties do not necessarily result in termination of the lease

By April 24, 2020November 21st, 2023No Comments

Those structural alternations in rented property which are required does not necessarily mean that the lease will be terminated. This was held in a judgement delivered by the Rent Regulation Board presided by Magistrate Dr Monica Vella in Rita and Emanuela Vella v George Tabone. The judgement was delivered on 27 November 2019.

The Vella sisters filed an application, wherein they explained that they rented a property in Haz-Zebbug. Their architect visited the property and found a number of structural alternations to the property and therefore, asked the Board for them to take back the property. The defendant argued that the applicants should have asked first that the lease be terminated before, asking for their eviction.

Furthermore, Tabone denied doing any structural alterations to the property. Magistrate Vella quoted extensively a Court of Appeal judgement Maria Nicholas et -v- Daniel Attard decided on 4 November 2016, wherein the Court held that if the defendant is arguing that the works were carried out with the owner’s consent, then the onus of proof is on him. Furthermore, caselaw has shown how works could be acceptable.

One criteria, is whether the structural alternations have changed the use of the property. If the property was a residential unit and changed to a commercial property, then the structural alternation is not acceptable. However, if the works carried out are ancillary to the use of the property, then this is acceptable.

Another criteria is when the works did not prejudice the structural composition of the property. In additional to this the Court took into consideration whether the changes to the structure was needed for the tenant to enjoy the property he is renting.

There were cases where the Courts have allowed extensive structural changes such as dropping down a wall, installing toilets or building of stairs. These should be considered as embellishments and not damages. In any case, these works may be removed to put the property as it was before is required. The last criteria is that the tenant is bound to return the property as it was when he/she was given the property.

The Board then analysed the evidence produced before it. The technical members of the Board mentioned in their report that these works were in fact changes to the roof. From MEPA aerial photos of 1998, it seems that the bathroom was already built at that time. A witness, Philip Grech, had testified and said that his uncle and an architect, had visited the property and found that the basement was closed off. His uncle was the previous owner of the property, but died and the Azzopardi sisters had inherited the property. Another witness, Rita Azzopardi, explained that the property was rented to the Tabone family for the last 50 years.

She entered the premises only three years before she testified in order to prepare the causa mortis. On this occasion she discovered that there were structural changes to the property. She was not aware of whether her sister had given permission for these changes. The previous tenant Joseph Magri also testified. He occupied the property between 1966 and 1975.

His title was that of temporary emphyteusis. When he first entered the premises, he was not in the best of conditions and since he was a builder, the owner allowed him to carry out the necessary works himself.

These included converting a door into a window and doing up the roof. The defendant testified and explained that he took over the place in 1975. He found the works already done, apart from a membrane that he placed on the roof. He changed the water pipes and electricity wires and also he changed the front door. The Board held that the evidence produced shows that the previous tenant, Joseph Magri, had carried out the works with the owner’s consent. The works that the defendant carried out were necessary.

The Board also pointed out that the present applicants entered the property 47 years after it had been left to both of the tenants, and they cannot say whether consent was never given.

The Court then moved to dismiss the applicants’ claim.

Av Malcolm Mifsud


Mifsud & Mifsud Advocates

This article can also be accessed on Malta Today.

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