MONTANARO AND OTHERS v. MALTA

Communicated on 27 May 2019
 
THIRD SECTION
Application no. 29964/18
Godwin MONTANARO and others
against Malta
lodged on 19 June 2018
STATEMENT OF FACTS
A list of the applicants is set out in the appendix. They were represented before the Court by Dr M. Camilleri and Dr E. Debono, lawyers practising in Valletta.The circumstances of the caseBackground to the case
The applicants own property No. 32, St. Scholastica Street, Birgu (“the property”), which the applicants inherited.
On 24 June 1985, the applicants’ ancestor rented (under title of temporary emphyteusis) the property to a third party, for twenty‑one years, at 80 Maltese liras (MTL) (approximately 186 euros (EUR)) per year.
In June 2006, on the expiry of the contract of temporary emphyteusis, the third party relied on Act XXIII of 1979 amending Chapter 158 of the Laws of Malta, the Housing (Decontrol) Ordinance, (hereinafter “the Ordinance”) to retain the property under title of lease, at the rent applicable according to law. Thus, the applicants were forced to recognise the tenant and the lease at the rent stipulated by law, in their case MTL 160 (approximately EUR 373) per year.Constitutional redress proceedings
The applicants instituted constitutional redress proceedings claiming that the Article 12 of the Ordinance as amended by Act XXIII of 1979 ‑ which granted tenants the right to retain possession of the premises under a lease ‑ imposed on them as owners a unilateral lease relationship for an indeterminate time without reflecting a fair and adequate rent, in breach of Article 1 of Protocol No. 1 to the Convention. They requested the court to award compensation for the damage suffered. The applicants argued that while it was true that at the time when the property was rented out in 1985, the law was already in force, they could not have foreseen the inflation in the property market in the following decades. Moreover, they had no other option than to rent the property under title of temporary emphyteusis, in order to avoid it being requisitioned as was common at the time.
By a judgment of 11 May 2017 the Civil Court (First Hall) in its constitutional competence found a violation of the applicants’ property rights and awarded EUR 10,000 in pecuniary and non-pecuniary damage combined. It accepted that the applicants’ property could have been at risk of being requisitioned, which explained their choice to rent out the property under title of temporary emphyteusis. The regime under which the applicants had rented their property could not be considered proportionate as the applicants received an extremely low amount of rent, i.e. EUR 372.20 annually (which will not change until 2021) while according to the court‑appointed architect in 2006 the market value was around EUR 4,692 annually, in 2011 it was EUR 4,947 annually and in 2015 EUR 5,100 annually. In awarding damage it also took account of the fact that it was ordering that the tenant will no longer be able to benefit from the amended law as well as the fact that the applicants’ ancestor had freely set the original rental value. It ordered that costs be paid by the defendant.
On appeal by both parties, by a judgment of 13 April 2018 the Constitutional Court revoked the first‑instance judgment and rejected the applicants’ claim. The court considered that the applicants had not proved that they had had no other choice but to rent their property ‑ while it was true that there was a possibility, they had not shown that there was a probability of this occurring. It noted that the applicants’ were aware of the law at the time when they decided to rent the property and yet they had not demanded a higher rent or any other more favourable conditions which could have prevented a disproportionate result. Moreover, by means of recent amendments the rent payable would be adjusted every three years and the right of the lease being inherited had been restricted. All costs of both instances were to be paid by the applicants.Relevant domestic law
The relevant domestic law in relation to the present case is set out in Amato Gauci v. Malta (no. 47045/06, §§ 19-25, 15 September 2009) and Anthony Aquilina v. Malta (no. 3851/12, §§ 28-29, 11 December 2014).
COMPLAINT
The applicants complained of a violation of Article 1 of Protocol No. 1.
QUESTION TO THE PARTIES
Has there been a violation of Article 1 of Protocol No. 1 to the Convention (see Amato Gauci v. Malta, no. 47045/06, 15 September 2009)?
 
 


APPENDIX
 
No.
Applicant’s Name
Birth date
Nationality
Place of residence
1
Godwin MONTANARO
09/11/1948
Maltese
St Julians
2
Josette CASOLANI
08/03/1946
Maltese
Sliema
3
Alan MONTANARO
21/08/1962
Maltese
Siġġiewi
4
Alexander MONTANARO
16/08/1952
Maltese
San Pawl Tat-Tarġa
5
Anthony MONTANARO
15/06/1987
Maltese
Naxxar
6
Frances MONTANARO
14/03/1927
Maltese
Naxxar
7
Malcolm MONTANARO
03/10/1983
Maltese
Swieqi
 

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