Conditions in emphyteutical deeds : an assessment of the jurisprudence

Abstract

The introductory part of the thesis briefly describes the purpose of the study at hand, highlighting the legal implications that arose mainly out of Act XXX of 1981 which introduced the possibility of unilateral redemption of ground-rent. There follows a brief historical description of the legal development the institute of emphyteusis has undergone as well as, its historical legal evolution within the Maltese legal system: some popular local perceptions are identified and dismissed as false. An assessment of the faculty to redeem as introduced by Act XXX of 1981 is made. In particular whether it has the effect of rendering the property formerly subjected to a ground-rent as free and unencumbered. For this purpose limited reference is also made to the Italian counterpart. Subsequently, a look at the effects of the redemption of the ground-rent is made. Although some argue that the intention of the legislator was directed towards the extinguishment of the institute itself, the issues before our Courts demonstrate that redemption of ground-rent may not necessarily have the effect of terminating all other conditions contained in the emphyteutical deed. A distinction, as is also interpreted by our Courts is drawn between those conditions which are extinguished by the redemption of the ground-rent as opposed to those that 'survive‘ the redemption. A round-up of the case law is made, including whether the 'surviving‘ emphyteutical conditions should be reclassified as servitudes, followed by a comparision of the two classifications as adopted, which although similar are at times poles apart. The author has felt the need to draw attention to other practical considerations arising out of the 'survival‘ of emphyteutical conditions in last chapter. The study at hand concludes the debate by calling for legal certainty.