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Evicting the Tenant – Portanier v Malta

by Dr Carlos Bugeja – Senior Associate

The judgment delivered today, 27 August 2019, by the European Court of Human Rights (EctHR) in the names of Portanier vs Malta is huge and far-reaching, for more reasons than one can imagine.

In the past few years, constitutional cases relating to controlled rents have taken our society by storm. Dozens of old controlled rents were deemed as creating an unjust and disproportionate burden on the owners, and both legal systems of residential controlled rents (Article 12 of Chapter 158, and Chapter 69) were declared as being in breach of the provisions of the European Convention of Human Rights and the Constitution of Malta.

There is however one thing which our courts of constitutional jurisdiction seemed to agree on: it was not the court’s job to order the eviction of a tenant holding lease under an ‘unconstitutional rent’.

Our courts have adopted the habit to merely declare the articles at law controlling the rent to be unconstitutional and invalid, award compensation, and state that the tenant could no longer rely on those articles at law rendered invalid. The owner would then have to resort to the Rent Regulation Board, and seek eviction therein on the basis of the fact that the tenant (without the protection of the law deemed invalid) did not have a valid title at law.

The case delivered today in the names of Portanier vs Malta seems to have changed everything.

Portanier had filed a constitutional case claiming that article 12 of the Housing (Decontrol) Ordinance (Chapter 158 of the Laws of Malta) breached his right to property. In line with the norm established, the Constitutional Court had awarded compensation, but considered that it was not necessary to evict the tenants, stating only that the tenants could no longer rely on article 12 of said Ordinance to claim title to the property.

The ECtHR criticised the system adopted by our courts. It stated that:

“Admittedly, it would appear that the success of the eviction request before the ordinary jurisdictions would be evident in the absence of any other legitimate title to the property, but then such an approach begs the questions – what purpose does such an action pursue if the result is automatic? Why does an applicant have to undertake another set of proceedings with connected expenses, and continue to suffer the violation for a number of months or years, if its result is automatic? In what way is the applicant redressed for the months or years during which the eviction proceedings are pursued and during which the owners continue to suffer the upheld violation?

(…)

The Court cannot but note that while an eventual eviction would surely cause some distress to the tenant, who is also the holder of certain rights under the Convention, it would be for the Government to relocate such a tenant if necessary. It is the role of the courts of constitutional jurisdiction to provide the available remedy for Convention violations, thereby protecting the victim (in this case the owners) from a continuing violation irrespective of any Government discomfort.”

In this case, plaintiff had managed to evict the tenants, so the Court did not need to order the eviction.

However, the ECtHR ordered the Government of Malta to pay claimant the sum of €6,000 for all costs incurred thereby, including those relating to the ‘extra’ eviction proceedings, begging the question: Having regard to the fact that the extra set of proceedings has been harshly criticised by the ECtHR, will the habit adopted by our courts not to order the eviction now change ?

This remains to be seen.

Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Carlos Bugeja on carlos@abalegal.eu.