European Court orders Maltese Government to pay Sliema tenant €14,000

Tista' taqra bil- Malti.

The European Court for Human Rights has ordered Government to pay Victor Portanier €14,000, after the Court found that Government did not assume responsibility as instructed by the Constitution of Malta.

The case originated in an application against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms by a Maltese national, Mr Victor Portanier on 19 September 2016.

The applicant alleged that he was still a victim of the violation of Article 1 of Protocol No. 1 upheld by the Constitutional Court given the low amount of compensation awarded. He also considered that there had been a breach of Article 13 in so far as the Constitutional Court was not an effective remedy as shown by its recurring practice.

The applicant holds the perpetual utile dominium of an apartment in Depiro Street Sliema. On 5th December 1974, the applicant and his now late wife had entered into a contract of sub‑emphyteusis with couple P. for seventeen years at a sub‑ground rent of 140 Maltese lira (€326), annually. On 10th December 1991, the applicants prolonged the contract for another seventeen years, this time at a ground rent of MTL 313 (€729) annually.

In 2008 on the expiry of the sub‑emphyteusis, couple P. claimed that by operation of law that contract was converted into one of lease. According to law, the applicable rent payable by couple P. was €1,186.46 annually.

According to the applicant’s architect, in 2009 the apartment had a sale value of €198,000 and a rent value of €608.19 monthly. It was of relevance that couple P. had made improvements to the apartment, and yet according to the applicant’s architect, the apartment in 2013 was valued for the purposes of sale at €100,000 bearing in mind that it had been leased for a long time. In his view had it been free from lease it would be worth €140,000. According to a court‑appointed expert the sale value in 2014 was €152,000. Relying on the sale value of the court‑appointed expert the Constitutional Court considered that the rental value must have been around €5,600 annually.

When taking into account the improvements made by couple P. and the fact that the property might not have been constantly rented out, the Constitutional Court considered that a fair rent would be between €3,000 and €4,000 annually. Under the contract of lease, couple P. were paying €1,186.46 which, in light of the public interest of the measure, was not entirely disproportionate, amounting as it did to around half of its real rental value. However, the law left little possibility of the applicant ever recovering his property, and the increase in rent every three years, according to law, was of no comfort given that it only reflected inflation increases.

Government is required to pay the applicant, €8,000 in respect of pecuniary damage; and an additional €6,000 in respect of costs and expenses.

The applicant was represented by Dr I. Refalo, Dr M. Refalo and Dr S. Grech.. The Maltese Government were represented by their Agent, Dr P. Grech, Attorney General.

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