The restrictions on the right to property, with particular reference to the law of lease relating to band clubs : an analysis of recent amendments

Abstract

The right to property is one of the most contested human rights in Malta as well as before the European Court of Human Rights in Strasbourg. Disputes are often the result of restrictions imposed by the State from time to time and which, as evidenced in a long stream of judgments, cause a disproportionate and excessive burden on the individual. The focus of this dissertation is precisely restrictions on the right to property as a result of the law of lease governing a particular type of tenant, that is, band clubs. The latter are still regulated by the controversial pre-1995 regime which courts have declared unconstitutional time and again. Such restrictions commonly include rent-control and forced leases for a determined amount of rent ex lege. After briefly discussing the right to property and its main exception, that is, the umbrella of public interest, a further discussion follows on the principle of proportionality, which runs throughout the European Convention on Human Rights. Chapter 2 follows with a coherent description of the development of the law of lease relating to band clubs, by discussing various legislative amendments, and more importantly, a number of seminal judgments. Subsequently, Chapter 3 delves into the recent judgment of the de Paule Band Club, which prompted the legislature to act in order to protect band clubs facing an eviction order. As a result, Act no. XXVII of 2018 was enacted, which is already being challenged before the courts at the time of writing. It revised, inter alia, Chapter 69 of the Laws of Malta as well as Article 1531J of the Civil Code. Furthermore, a critical analysis follows which aspires to elucidate such amendments and further discuss their validity, constitutionality, and possible implications in the light of the various fundamental principles discussed throughout this work.