Navigating ownership shifts : church lands and government transfers with regards to the Mortmain Act, the 1991 Agreement, and thereafter

Abstract

In Maltese society, the Christian faith and the Church have traditionally wielded significant influence across various domains, including social, political, and economic affairs. The Church was granted numerous special privileges and held extensive property rights. By 1890, it was estimated that ecclesiastical entities owned one-third of all property in Malta, despite seventy years of stringent legislation aimed at restricting their acquisition of further property.1 The Conventio Inter Apostolicam Sedem Et Rem Publicam Melitensem De Bonis Ecclesiae Temporalibus (the "Agreement Between the Holy See and the Republic of Malta on the Temporal Goods of the Church"), hereafter referred to as the 1991 Agreement, was signed on 28 November 1991. This agreement initiated a property transfer process that continues to this day. The extensive holdings involved have become a central issue in Maltese property law, due to the substantial amount of property transferred and the enduring effects of the rights granted. The effects of the Agreement are far-reaching and have reached each and every aspect of the property. The purpose of this Professional Report is to identify the principal challenges faced by Notaries when examining titles and the resulting effects under the Mortmain law and the 1991 Agreement of properties subject to inter-vivos transfer. This will be achieved through an analysis of relevant legislation, particularly Chapters 2962 and 3583 of Maltese law, as well as an examination of pertinent case law involving the Joint Office as a party to the dispute. Additionally, the Report will incorporate academic commentary that evaluates the 1991 Agreement and its legal implications. This Report will first explore the origins of mortmain law in Malta and its evolution throughout the British period and the establishment of the Maltese Republic, examining its impact and the historical context in which it operated. The second chapter will analyse the 1991 Agreement, its rationale, and its key provisions. It should be noted that this Professional Report will not address issues of remuneration and expropriation, which are also covered by the Agreement. The final chapter will assess the implications of this Agreement on title examination, property boundaries, emphyteusis, and other legal requirements in regards to property transfers.