Amendments to Chapter 158 of the Laws of Malta in the light of recent judgements of the European Court for Human Rights and the Maltese Constitutional Court

Abstract

This thesis gives a brief historical background of Chapter 158 of the Laws of Malta, the Housing (Decontrol) Ordinance, and outlines the history of the Right to Property as it evolved through the European Convention for Human Rights and the judgements of its Court in Strasbourg. The main objective of this thesis is to examine and argue particularly whether, following a string of contradictory judgements given by our local Courts, the provisions of Article 12 of Chapter 158 are in violation of Article 37 of the Constitution of Malta and of Article 1 of the First Protocol to the European Convention on Human Rights, as alleged. The position of the emphyteuta and his right to transfer an emphyteutical deed into a perpetual one upon termination of leasehold or temporary emphyteusis as it stands today will be examined. The margin of appreciation afforded by the European Convention to its member states and the principle of proportionality where the right to property is concerned will be debated at length in order to seek whether the legitimate expectations of both the landlord and the tenant are being abused of by the current situation. The conclusion of this thesis will propose legislative amendments in order for the State to strike the necessary fair balance between all the parties concerned.