The conversion of temporary emphyteusis into permanent lease agreements in breach of fundamental human rights : an analysis of Act XXVII of 2018 in the light of recent court judgments

Abstract

Article 12 of the Housing (Decontrol) Ordinance, Chapter 158 of the Laws of Malta, has for decades been criticised by the European Court of Human Rights and domestic Courts collectively, for breaching owners’ fundamental human rights. These Courts consequently and consistently urged the State to intervene. While this Article purported to constitute a measure of rent control, by allowing temporary emphyteutical concessions to be converted into lease, by Act XXIII of 1979, a brief historical overview of the social and legal developments leading up to this Act, proves that the Article was critical to evade state-wide homelessness. Over the years, case-law has highlighted that the provisions of this Article are permeated with deficiencies which render the Article in violation of the right to peaceful enjoyment of possessions. This right is protected under international, regional and domestic laws concurrently. By analysing a variety of Court judgments, these deficiencies can be logically grouped into five categories. State intervention occurred by the implementation of Article 12B in Act XXVII of 2018. The pinnacle focus of this study is thus to determine whether Article 12B is a sufficient amendment to end the systemic violations caused by Article 12 of the Housing (Decontrol) Ordinance, and thus, whether it remedies the deficiencies outlined. Although it is humbly submitted that Article 12B does attempt to address these issues, it may nonetheless not strike the desired balance between the rights of owners and tenants and therefore, there may be other modes of action to achieve the desired effects.