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In the Case of Aquilina v Malta (Application no. 40246/18) decided on 9 June 2020 and the Case of Montanaro and Others v. Malta (Application no. 29964/18) decided on 1 September 2020, the European Court of Human Rights (ECHR) overturned yet another decision taken by the Constitutional Court here in Malta. Both judgments dealt with the 1979 amendments to Chapter 158 whereby a temporary emphyteusis (cens) would upon termination convert into a protected lease.

The law has been found in breach of human rights in several cases both in Malta and in Strasbourg. However, in the cases of Aquilina and Montanaro, the Constitutional Court in Malta had decided that in these particular cases there was no breach of the right to property. The plaintiffs in these cases had claimed that they entered into a temporary emphyteusis agreement after the amendments of 1979 (therefore knowing of the conversion from emphyteusis to lease upon termination) because they feared requisition or expropriation. The Constitutional Court decided that the plaintiffs had not proven that a requisition or expropriation was probable in their cases. The Constitutional Court stated that there was no breach of human rights because the plaintiffs knew that the law had been amended and therefore freely entered into an agreement of temporary emphyteusis.

The ECHR disregarded this reasoning and focused on the fact that the applicants could not reasonably have had a clear idea of the extent of inflation in property prices in the decades to come and how this would be extremely disadvantageous to him. The Court reiterated that a State can control the use of property, but this must be done for a legitimate aim and the measures proportionate with respect to the aim. The ECHR has repeatedly stated that the operation of the rent laws (in this case Chapter 158) is too burdensome on the owners of these properties, they offer no procedural safeguards and therefore are in breach of the owners’ right to the peaceful enjoyment of their possessions.

In both the Aquilina and the Montanaro cases, the court awarded pecuniary damage, non-pecuniary damage and costs and expenses to the applicants.

Dr Michael Camilleri and Dr Edward DeBono appeared for the applicants.


This document does not purport to give legal, financial or tax advice. Should you require further information or legal assistance, please do not hesitate to contact Dr. Michael E. Camilleri